At this stage, Baldwin reactivated proposals for a conference in London,190 presumably as a result of pressure from the Irish Society.191 The meeting took place in May 1928 in the offices of Dominions Secretary Leo Amery. Costello joined Blythe and McGilligan on the Free State delegation, while Babington was joined by John Milne Barbour, Parliamentary Secretary for Finance, and Northern Cabinet Secretary Charles Blackmore. Babington referred to his talks with Costello, and to the draft bill he had prepared to be passed by both parliaments, banning drift-net fishing on the Lough while ignoring the question of jurisdiction. But this solution was overruled by Costello’s political superiors. Blythe said it was “politically impossible”, and again called for the Irish Society to take a case in the Free State courts to sort the matter out once and for all. This was rejected by the Northern delegation, and finally Amery offered to contact the Irish Society to see if a solution could be found.192 He put to them a suggestion made by the Free State delegation, who claimed it would be politically difficult to pass legislation protecting the fishery unless there was some benefit to Donegal. Amery suggested charitable donations of two or three hundred pounds a year, a suggestion the Society agreed to consider.193 However, when the Society met representatives of the Free State Government, they found Costello in best barrister mode, claiming the sum was “absurdly low”, and again insisting that they take a court case. “Establish your right and we will protect it.”194 With no legislation in prospect in Dublin, Babington wrote to Costello at the end of July putting an end to their discussions. “As we cannot get any further, things will have to remain as they are … If at any future time your Government are both willing and able to deal with the matters we have discussed I shall be only too glad to take them up again …”195
The long-threatened violence broke out the following year, when a patrol boat operated by the Fisheries Company was destroyed.196 In response, the Company sought an injunction in the High Court in Belfast against Free State fishermen. When it was granted, Cosgrave claimed that the Court was acting beyond its powers, and warned London and Belfast that an attempt to enforce the injunction could lead to “breaches of the peace and possibly loss of life”.197 Craigavon replied that the only solution was to ban drift-net fishing, adding that legislation “jointly prepared” by Costello and Babington “admirably meets the case … as it carefully avoids any reference to the boundary issue”. He said he intended to include it in his legislative programme for the following year.198 But Dublin stuck to the line that the only solution was for the Irish Society to take legal action in the Free State courts, a suggestion the British Government once again agreed to press on the Society. The British also agreed that the Belfast court action had been “very provocative”.199
Violence continued with suspected involvement by the IRA, who were reported to be “anxious to make trouble” and “on the look out for Thompson machine gun ammunition”.200 But the Irish Society ignored the advice of the British and Irish Governments for quite some time, finally taking a case in the Irish courts in the mid-1940s which was still dragging on when Costello returned to government as Taoiseach. The fisheries issue was finally resolved by the purchase of the fishery by the two governments and the appointment of the Foyle Fisheries Commission to manage it—the first example, incidentally, of a North–South body with executive powers, an example much quoted at the time of the Good Friday Agreement.
Another legal issue involving Dublin, Belfast and London concerned the Order of Saint Patrick—and it too was to re-emerge when Costello was Taoiseach. The Order was created by George III in 1783, and was conferred only on peers connected to Ireland. The establishment of the Free State obviously created some question over the future of the Order, and in 1924, Craig made efforts to have it transferred to the North. He also wanted the Order conferred on the King’s sons, the Prince of Wales and the Duke of York.201 British Prime Minister Ramsay MacDonald ruled out any changes or new appointments.202 However, the deaths of a number of knights in the next couple of years prompted the British Government to approach Cosgrave on the matter. Their emissary was Lord Granard, who was a member of the Free State Senate as well as the King’s Master of the Horse.203
The Executive Council requested Costello to prepare a memorandum on the legal position of the Order,204 which characteristically took 14 months to complete.205 Costello concluded that the King was bound to act solely on the advice of Irish ministers in relation to the Order; that Northern Ireland had no role, as it had opted out of the Free State and had no jurisdiction over dignities or titles of honour; and that it was open to the Executive Council to decide that the Order should be allowed to lapse.206 Ministers duly decided that this was the best course of action.207 The British sent a further message, through Granard, that they did not share the Irish view, but Cosgrave ignored it.208 Stumped by the Irish response, the British decided to keep the Order in being, but to restrict it to members of the Royal Family, and two more appointments were made, the last in 1936.209
However, the British managed to pull off something of a coup during the war, when the British Press Attaché (and spy) John Betjeman persuaded the Office of Arms in Dublin Castle to hand over the seal of the Order.210 Costello was encouraged by officials to seek the return of the seal during the Anglo-Irish trade talks in 1948, but “found no opportunity of raising this matter”.211 However, his Northern counterpart, Sir Basil Brooke, did find an opportunity of raising it—the revival of the Order of Saint Patrick was one of the responses he suggested to Costello’s declaration of the Republic in September 1948.212 British Prime Minister Clement Attlee declined to act on the suggestion, and while the Order was never actually abolished, its last member died in 1974. Suggestions by Blythe for the creation of an independent State decoration, the Cross of the Legion of Saint Patrick, also came to nothing213—the question has resurfaced from time to time over the years but without much vigour.
Costello’s position as Attorney General had involved him in several legal questions with important constitutional implications—it was also to give him a ringside seat as the Free State sought to establish its international position, and to change the British Commonwealth in ways that could hardly have been imagined in 1921.
Chapter 4
A LONG GAME
“It is not the pace that matters, but the direction. It’s a long game, and I would like to see it played out.”1
KEVIN O’HIGGINS, 1926
“… there have been advances made that I did not believe would be made at the time.”2
EAMON DE VALERA, 1932
“What was achieved was the final justification of the founders of this State.”3
JOHN A. COSTELLO, 1946
The Commonwealth which the Irish Free State joined by virtue of the Treaty was in a process of evolution. In fact, the Treaty was the first official document to use the new title invented by General Smuts—“The British Commonwealth of Nations”. But “the relationship of that Commonwealth remained obscure and the status of Dominion … was not clearly defined”.4 As historian Nicholas Mansergh pointed out, Irish governments after the Treaty had two possible policies towards the Commonwealth. “The first was to refashion the Commonwealth in closer accord with Irish interests and outlook; the second to seek the first opportunity to unravel … Irish ties with the Commonwealth.” He goes on to argue that, broadly speaking, Cosgrave pursued the first policy while de Valera pursued the second.5 However, it should be noted that the unravelling would have been impossible, or at the very least much more difficult, without the refashioning which had preceded it.
The Irish effort to establish and enhance the new state’s status was fought on two fronts—at the League of Nations, and at a succession of Imperial Conferences. As the Government’s chief legal adviser, Costello was part of the team which pursued the diplomatic struggle. In the words of Garret FitzGerald he was “the legal genius” of that team, whose “immense legal skill, his brilliance in any aspect of Constitutional Law, gave to our deleg
ation of Ministers and civil servants such a basis of knowledge, experience and skill, that they were able to outmanoeuvre not just the delegations of the other countries of the Commonwealth, but the British themselves”.6 This, while perhaps an overstatement, captured the importance of his role. Costello’s involvement in these events also gave him a grounding in diplomacy at the highest level—whether he used that experience to best advantage as Taoiseach will be examined in a later chapter.
The new Attorney General’s first appearance on the international stage was very much a walk-on role, at the 1926 Imperial Conference in London. The official delegates to the Conference were W.T. Cosgrave, Kevin O’Higgins, Desmond FitzGerald and Patrick McGilligan.7 Costello was to attend as an adviser, along with the Secretary of the Department of External Affairs, Joe Walshe, Secretary to the Executive Council Diarmuid O’Hegarty, and John Hearne, legal adviser to the Department of External Affairs, who had drawn up most of the memoranda for the delegation on the issues they could expect to face.8 However, Cosgrave had no intention of staying in London for the duration of the Conference—O’Hegarty explained that he had had no holiday, and his wife had been ill. “He fears, and we all fear, that unless he gets some rest before the Dáil resumes, he will feel the strain very severely.”9 In his absence, it was clear that O’Higgins, Minister for Justice and Vice-President, would be in charge, rather than the Minister for External Affairs, FitzGerald. Cosgrave was asked which of his ministers should join him as the second Irish guest at a dinner in Buckingham Palace, being told that the chosen minister “will be regarded as the head of the delegation in your absence”. He chose O’Higgins.10 This may have been just as well—O’Higgins told his wife that the British “will stand more from me than from Desmond, whom they dislike”.11
In advance of the Conference, Walshe summarised the difficulties in relations with Britain. They included the “usurpation by the British Government of the right to advise His Majesty” on matters affecting a particular Dominion; the use of the Foreign Office as the channel of communications between the Dominions and foreign governments; the failure to change the Royal Title to take account of the creation of the Irish Free State and its separation from the United Kingdom; the ban on Dominion legislation having extra-territorial effect; the British view that relations between members of the Commonwealth were not “international”; and the existence of the appeal to the Privy Council (see previous chapter). He concluded that the Conference was “incomparably more important for the Dominions than any one that has preceded it”.12
In his own preparatory memorandum, Costello dealt with merchant shipping legislation, a fairly complex legal area which seemed unrelated to fundamental constitutional issues. But as the Attorney General pointed out, the existing 1894 Merchant Shipping Act gave the British Board of Trade the right to administer shipping throughout the Commonwealth. This, he argued, “appears to be inconsistent with the exercise of complete legislative and administrative control of their public services by the various members of the Commonwealth”. Giving member states the right to control every class of shipping within their jurisdiction would be desirable “on grounds of constitutional propriety and … on grounds of practical convenience in … administration”.13
If the British hoped discussion on the Constitutional question could be kept low-key, they were to be sorely disappointed. This was largely thanks to the actions of the Governor General of Canada, Lord Julian Byng, who was accused of acting in an “unconstitutional and autocratic” manner. He had refused a dissolution of Parliament to Liberal leader W.L. Mackenzie King after his minority government lost a vote of censure in the House of Commons on 26 June. Byng summoned the Conservative leader, Arthur Meighen, to form a government, but when he in turn was defeated in Parliament on 2 July he reversed course and granted the defeated Prime Minister a dissolution. Mackenzie King declared that the issue before the people was “whether or not the Government of Canada is to be carried out in accordance with the expressed will of the people’s representatives in Parliament under a system of self-government”.
Joe Walshe noted with some satisfaction that “the British would hardly regard a violent electoral contest on a big constitutional issue as a propitious preparation for calm discussion at an Imperial Conference”.14 The issue was discussed in London at a meeting between Dominion High Commissioners and the Dominions Secretary, Leo Amery, who insisted Byng had not sought or received any advice from London. The Irish High Commissioner, James MacNeill, shortly to become a Governor General himself, expressed some sympathy for Byng, but predicted that “hereafter the rubber stamp view will prevail”.15
The idea of the Governor General as a “rubber stamp” acting on the wishes of the Dominion Government would have given considerable satisfaction to Dublin. The Irish Attorney General was developing his own, very firm, ideas on the role of the Governor General. In his notes, Costello wrote that his constitutional position should be the same as that of the King. “He should have no power to question or attempt to control executive action … the possibility of the Governor General’s refusal to act on advice weakens the sense of ministerial responsibility. It is not compatible with the ideal of equality of status that a Ministry which represents the choice of Parliament and the constituencies should be subject to control in their action by a nominee of the Imperial Government, even though his action is taken on his own initiative.”16
Unlike other delegations to the Conference, the Irish rejected the British offer to provide accommodation, on the grounds that they did not have to pay heavy travel expenses. But it was clear that the Irish were really concerned with asserting their independence—Kevin O’Higgins stated his desire for “the Parliament and people of the Irish Free State to regard the Delegation as carrying on important business on their behalf as partners in the British Empire”.17 This decision signalled the attitude the Free State delegation would be taking during the conference. But it also led to constant rows with the Department of Finance over expenses. O’Hegarty complained bitterly to Finance official H.P. Boland: “The volume of work here is so enormous that we cannot reach half of it—and needless to say the financial end is the most annoying.”18
The round of socialising took its toll of the main delegates. O’Higgins complained that “every day there is a lunch or dinner to be faced—generally both and it’s all rather a strain on the ‘innards’”.19 On the plus side, he found King George V “very gracious and affable” during a 15-minute conversation at the dinner in Buckingham Palace,20 and even found time to experience his first flight at Croydon one Saturday, “which I enjoyed very much … except for the noise there was nothing unpleasant”.21 O’Higgins, of course, was also engaged in other social activities at the time with his mistress Lady Lavery.22 But mainly the Conference was hard work—especially for Costello and the rest of the backroom team, who found themselves stuck in the Hotel Cecil for days and nights on end because of the constant need for consultation. And while the official dinners were hard on the “innards”, eating at the hotel was very hard on the finances. As Attorney General, Costello had a subsistence allowance of 30 shillings per night, but still found himself “very considerably out of pocket” after a six-week stay in London.23
In advance of the Conference, the Department of External Affairs had hoped to combat “subtle proposals” from the British by co-operating with the Canadians.24 However, their hard line appeared to worry Mackenzie King. After meeting FitzGerald and Costello, the Canadian Prime Minister noted in his diary that the Irish were “inclined to the extreme view of having five countries, each with a separate King, operating in all particulars as distinct nations”. He contrasted this with the British “desire for the single government of all”, implying that he would seek a middle way.25 The Irish weren’t too impressed with Mackenzie King, with O’Higgins observing that he had “disimproved since ’23—gone fat and American and self-complacent”.26 According to Desmond FitzGerald, the Canadian Prime Minister annoyed O’Higgins at a di
nner party with Lord Simon by referring to “the way he and we worked together when as a matter of fact we did the fighting and got damned little support”.27
O’Higgins was also unimpressed with the South African Prime Minister, General Hertzog, “a very decent and likeable kind of man [who] has not been a success—he talks a lot and none too clearly … The onus of the ‘status’ push … has fallen very largely on ourselves and while we have made some headway, it would be greater if Hertzog were more effective and King a stone or two lighter.”28 After the conference, when the South African Prime Minister returned to Pretoria, he told the welcoming crowd, “We have brought home the bacon.” To which O’Higgins retorted, “Irish bacon”.29 The South Africans were trying to gain a British declaration that they had a right to secede from the Commonwealth. Costello later claimed that he had advised General Hertzog “that the British would give any number of phrases recognising the right, but if it was ever being translated into practice the utmost pressure would be brought to bear to prevent it”.30 This assessment may have been in his mind during the debate on repealing the External Relations Act (see Chapter 8).
While Costello was not one of the main delegates, he was more than an advisor, representing the Free State on the Committee on Workmen’s Compensation,31 a subject he would have been very familiar with from his work in the courts. He also represented Ireland on a sub-committee of the Committee on Inter-Imperial Relations. The sub-committee dealt with Treaty Procedure. Costello forcefully put forward the Irish position, objecting to the use of “British Empire” to cover the entire Commonwealth when signing treaties. He suggested referring to the King instead, which “would preserve the unity of the Empire, and at the same time make it clear that each of the contracting States was a separate entity acting on the advice of separate sets of Ministers”. Those parts of the Empire which were separate members of the League of Nations should not, he argued, be covered by Britain’s signature on treaties.32
The Reluctant Taoiseach Page 12
