The Reluctant Taoiseach

by David McCullagh

  At the Committee on Nationality, O’Higgins rejected the British Home Office proposal to allow female British subjects a legal right to declare their nationality when they married aliens. The measure was proposed to deal with situations which had arisen during the First World War, when women who had lost their British nationality on marriage found themselves trapped when hostilities broke out. O’Higgins told the Home Secretary, Sir William Joynson Hicks, that he couldn’t get such a proposal through the Dáil. “We are a conservative people despite superficial evidence to the contrary … there is not in the Irish Free State the same pressure from Feminist movements which … exists in Great Britain.”33 He observed mordantly that he and the South African representative, who also opposed change, “would be delivered into the hands of the feminist organisations of the Commonwealth of Nations as a whole burnt offering. They would be made the scapegoats and would be represented as the enemies of womankind.” He pointed out that the British Government was itself divided on the issue, with the Foreign Office opposing the change proposed by the Home Office.34 Costello, meanwhile, told the Conference that they were members of the British Commonwealth of Nations, not the Commonwealth of British Nations, but this important distinction did not find enough support35—yet.

  In the privacy of his letters home to his wife, O’Higgins rejoiced that the Irish “are by far the best team in the Conference …”36 He also floated to his wife the idea of “a dual monarchy—two quite independent Kingdoms with a common King and perhaps a Defence Treaty … It presupposes, of course, a united Ireland …”37 As the Conference drew to a close, he felt they had done well and made “quite definite and important progress” on Constitutional questions. “… [I]f only people at home had a true sense of their interests they would seize the opportunity of next year’s election to steam-roll the Irregular elements and go full steam ahead for a United Ireland and a Dual Monarchy … all this lopping off of old forms and abandonment of old claims which has gone on for the last month has left a clear open avenue to that solution if only—if only we had a smaller percentage of bloody fools in our population …”38 O’Higgins, accompanied by Costello, went to a function at one of the Inns of Court specifically to meet Edward Carson in order to sound him out on the idea. Costello later claimed to believe that had O’Higgins lived, “Partition would have ended before 1932.”39

  There was plenty in the final report of the Conference for the Irish to be happy about. One recommended change was a simple comma. The King’s Title referred to him being ruler “of the United Kingdom of Great Britain and Ireland and of the British Dominions beyond the seas” and so on. The Conference recommended the removal of an ‘and’ and addition of a comma, so the title would read “Great Britain, Ireland and the British Dominions beyond the Seas”.40 Dominions Secretary Leo Amery later recalled “O’Higgins’s persuasive advocacy of the comma and I agreed with his general outlook. I was entirely prepared to accept the wording which indicated the historical difference between Ireland and the younger members of the Commonwealth and at the same time left the door open to eventual Irish unity.”41 The Conference also accepted the Irish view of the role of the Governor General, who was no longer to be the representative of the British Government but only of the King. In consequence, he would no longer be the channel of communication between the British and Dominion Governments.42

  On the Privy Council, the Irish summary of proceedings recorded the British agreement that judicial appeals should be dealt with as the Dominion concerned wished. It also noted that the Irish Free State did not press for an immediate change, “though it was made clear that the right was reserved to bring up the matter again at the next Imperial Conference”—a conclusion that would be challenged by the British, as we shall see below.

  But by far the most important conclusion related to Dominion status. The Balfour formula (named after the chairman of the Committee on Inter-Imperial Relations, Arthur Balfour) defined their position and mutual relations as follows: “They are autonomous Communities within the British Empire, equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs, though united by a common allegiance to the Crown, and freely associated as members of the British Commonwealth of Nations.”43 Historian David Harkness wrote that the Declaration was, to the Irish, “of no importance: worse still, it was a distraction from the real issues”.44 This may have been the Irish attitude at the time—but the number of times the Declaration was cited in later years in various tussles with the British suggests that it turned out to be extremely useful.

  As Costello later wrote, “The legal bonds which formerly bound together the fabric of the old Colonial Empire were to be entirely removed. The doctrine of the supremacy of the Parliament at Westminster and the paramount power of its Statute Law was placed under sentence of elimination”.45 He quoted O’Higgins’s words to members of the Delegation who felt more could have been achieved: “It is not the pace that matters, but the direction. It’s a long game, and I would like to see it played out.”46 O’Higgins, of course, would not live to see the end of his long game—but Jack Costello would, playing a key part along the way. The first task was to ensure that the British lived up to the agreement.

  Attention now switched to the wider international arena. The first test of the supposed equality of Dominions came with a conference in Geneva on the limitation of naval armaments. Clearly the Free State had no interest in the subject matter of the conference—but it had every interest in asserting its international status. Dublin advised London in March 1927 that if the Commonwealth states could not be represented individually, it would be better for the Dominions to abstain from the Conference altogether.47 Dominions Secretary Leo Amery agreed that each Government would be able to appoint “a separate delegate who would hold a separate full power from His Majesty the King … to negotiate …”48 However, it was only after further Irish pressure that he agreed that the British delegation’s Full Power would be limited to the territory of the United Kingdom and the Colonies, rather than covering the Dominions as well. As Joe Walshe pointed out, “for the first time—if they are held to their agreement—the British will sign an international instrument of a purely political character on a basis of complete equality with the Dominions”.49 Given the important constitutional issues involved, Costello was named as a delegate, along with FitzGerald as Minister for External Affairs.50

  In the event, FitzGerald was replaced as Minister for External Affairs by Kevin O’Higgins on 23 June, just four days before the Irish delegation arrived at the conference. They went, in Costello’s words, “to represent at a Naval Conference a country without a Navy”.51 O’Higgins’s first call in Geneva was to the head of the British delegation, First Lord of the Admiralty William Bridgeman. He explained that Irish interest in the conference “was mainly, if not entirely, based on Constitutional considerations”, and that so long as its constitutional position was “rigidly respected and safeguarded” the Free State would back British technical proposals. Bridgeman agreed with O’Higgins’s conclusion that “nothing should be done during the Conference to obscure in any way the exclusive right of the representatives of each State of the Commonwealth to accept responsibilities … for … their own Government”.52

  O’Higgins expressed frustration with the Canadians and South Africans, who “will only fight in support of us. They have not yet learned to take a stand on their own and in any case they only see things when they are pointed out to them.” However, he grudgingly admitted that “they played up well enough yesterday—under tuition”.53 One Irish success related to the naval quotas to be agreed at the Conference. The British wanted a single quota, rather than one for each Commonwealth member, presumably so they could use any spare capacity. O’Higgins was happy enough with this proposal, but persuaded the Canadians to back his suggestion that instead of a quota for the “British Empire”, it should be for the sum total of “all the States Members of the British Commonwealth”, in order
to stress their status as individual states. The Irish also forced the British to have a reference to the British Empire removed from the minutes of the Executive Committee. As Joe Walshe noted, “All this shows the necessity for careful watching of all subsequent proceedings …”54

  Having explained the Free State’s constitutional position “to a roomful of British Admirals, Commanders of Submarines, Gunners and other experts”, O’Higgins felt his work was done, and “relaxed and freely discussed his hopes and future plans” with Costello and the rest of the delegation.55 He wrote to his wife that he was “feeling much less the leavings of an election campaign than I was four days ago. I rout out Walshe and Costello at 6.45 every morning and we swim in the lake before breakfast.” They also enjoyed a day trip to the nearby ski resort of Chamonix, where they took a cable car up to the Alps. “Literally our heads were in the clouds—all round about us snow clad peaks glittering in the sun and Chamonix like a toy village down below.”56 But, despite the attractions of a short holiday, O’Higgins decided to return home early to get back to his work in Dublin.57

  In his absence, Costello and Walshe went to a meeting of the Credentials Committee, taking advantage of its informality to sneak a look at the British Full Power “without appearing to have any definite object in view. The Power is in proper form and is restricted territorially according to their agreement with us.”58 Clearly the Irish were not taking any chances. But having made their point, and checked up on British bona fides, the work in Geneva was done. Costello went to a couple of meetings, but didn’t speak, before leaving for home.59 O’Higgins, meanwhile, had paid a high price for his early return. He left Geneva on 5 July,60 apparently spending two days with Hazel Lavery in London on his way home.61 After he returned to Dublin he was gunned down on his way to Mass, with political and legal consequences examined in the previous chapter.

  Costello was to return to Geneva in the autumn, as Primary Irish Delegate to the Assembly of the League of Nations. McGilligan, the new Minister for External Affairs, was originally named as the leader of the delegation,62 but the September election made it impossible for him to go. With Costello were the Irish Representative to the League, Michael MacWhite, Diarmuid O’Hegarty and Joe Walshe. The Irish had already been quite active in the League of Nations, registering the Treaty there in 1924 against British opposition—Dublin held it was obliged to register the Treaty as it was an international agreement, while the British took the view that it was an internal matter between two members of the Commonwealth. The Irish had also sought a seat on the Council of the League in 1926, again against British wishes. The point of this was not simply to prove that Britain did not speak for all the Commonwealth members, but also to vindicate the right of small League members to representation. As Desmond FitzGerald put it, “We not only defended Dominion rights but also countries like Austria, Hungary, Bulgaria, Abyssinia, etc. We got the ten votes with British against us … I am quite satisfied that we could have been elected with a proper canvass in good time.”63

  In advance of the 1927 Assembly, Walshe suggested another run for the Council. “Only the actual election of another Commonwealth State [i.e. apart from Britain] to the Council will make our independent status in the League apparent at home and abroad.”64 It was agreed that the Free State should go forward unless the Canadians decided to do so.65 Costello was a member of the Assembly’s First Committee, which dealt with constitutional and legal questions. But apart from being appointed to a sub-committee looking into the question of international arbitration,66 Costello made little impact, and the Irish candidacy for the Council was withdrawn in favour of the Canadians.

  Costello was back for the following year’s Assembly, as part of a much higher-powered delegation, led by Vice-President Ernest Blythe, and including FitzGerald, now Minister for Defence, and Education Minister John Marcus O’Sullivan.67 The First Committee again focused on the question of international arbitration, with Costello strongly backing a proposal for a General Act of the League, claiming that “a great step would have been taken in the development of arbitration throughout the world if that draft should be adopted”.68 The British delegate argued that a General Act, rather than a less binding Convention, would be “a source of danger to the League”, but the draft supported by Costello was passed by the Assembly with no substantial modification.69 The contrasting Irish and British attitudes to international arbitration were a forerunner of a more serious dispute the following year.

  In letters home to his wife, Desmond FitzGerald grumbled that his committee sat in the afternoons, while Costello and the other delegates were free from lunchtime, having sat in the mornings.70 It is unlikely, however, that FitzGerald was short of social diversion. He had written home in 1926 that “shyness is not a feature of diplomatic women—on the first meeting one may easily learn how often their husbands perform with them or how they like it done”.71 Such considerations seem unlikely to have occurred to the other members of the delegation. Michael MacWhite, the permanent representative to the League, was more concerned with the image of Ireland at Geneva. He complained that “the voice of the Saorstát has been scarcely heard in the Reformation Hall”. A similar reticence was evident in the various committees, although he charitably gave the Irish members credit for exercising influence “in conversations with other delegates, in supporting proposals corresponding to our ideas and by a discriminating use of the vote … In the long run, however, it is only those States whose representatives participate actively and openly in the general work of the Assembly who count …” He advised another run for a Council seat when Canada’s term expired in 1930, arguing that Irish chances would be boosted if it were to sign the Optional Clause of the Permanent Court of International Justice72—a question that was to dominate the 1929 Assembly.

  The Optional Clause committed signatories to submit international disputes to the compulsory jurisdiction of the Permanent Court of International Justice. The Court, which sat at The Hague, had been provided for in the Covenant of the League. It was inaugurated in 1922, and dissolved in 1946, when it was succeeded by the International Court of Justice.73 In 1924, Ramsay MacDonald’s first Labour Government made moves towards accepting the Court’s compulsory jurisdiction, although there were concerns about the British Empire’s position in time of war.74 The matter was shelved when the Tories came back to power, and at the 1926 Imperial Conference it was agreed that none of the Governments represented there would accept compulsory jurisdiction “without bringing up the matter for further discussion”.75

  However, shortly after resuming office in June 1929, MacDonald informed the Dominions that he felt it was time to accept the Court’s jurisdiction, although he made it clear that Britain would sign with reservations.76 These included the exclusion of disputes either submitted to or under consideration by the Council of the League. The British felt this would allow them to avoid making a specific reservation about disputes between belligerents at sea, as such disputes would inevitably come before the League Council. They also rejected as unnecessary an Australian suggestion that disputes between members of the Commonwealth should be excluded. The British held that “the declaration only accepts the jurisdiction in international disputes”.77 In other words, the British still did not accept the full sovereignty of the Dominions. McGilligan said the Free State wished to sign with as few reservations as possible. He also pointed out that the conclusions of the 1926 conference did not imply that a general agreement was needed before a member of the Commonwealth could sign.78

  The Irish believed the British were intent on reviving what was called the inter se doctrine. This phrase, literally meaning “between or among themselves”, held that disputes between members of the Commonwealth were internal, rather than international. They also objected to the British proposal to restrict jurisdiction to matters arising after ratification—which would obviously exclude disputes relating to interpretation of the Treaty.79

  A lengthy memorandum by Costello outlined the
sequence of events in Geneva. MacDonald managed to offend many of the Dominions at a meeting of the British Commonwealth delegations on 1 September, using language which “generally assumed paternal responsibility for all the Commonwealth Delegations. This attitude caused obvious resentment on the part of Canada, South Africa and ourselves and even on the part of Australia.” The British subsequently blamed MacDonald’s faux pas on his unfamiliarity with the Dominion position, but it was a bad start. The Prime Minister wanted to make an announcement at the League Assembly that Britain and all the Dominions had decided to sign the Optional Clause, believing this would “have a tremendous moral and psychological effect … He appeared to be tremendously anxious to create somewhat of a stir by his announcement …” McGilligan quickly put a stop to this suggestion. He also objected to the proposed British wording for acceding to the Optional Clause, claiming it had been designed to exclude intra-Commonwealth disputes from the jurisdiction of the Court. This was stoutly denied by MacDonald, who called in the Foreign Office legal adviser, Sir Cecil Hurst, to explain. To the Prime Minister’s evident discomfort, Hurst confirmed that the Irish suspicions had been absolutely correct.80 While Hurst’s attitude came as a surprise to MacDonald, the Irish were well aware of his views. The previous March, he had argued at the League of Nations Committee of Jurists that disputes between two Dominions could not be brought before the court as they “were not international”.81

  A major disagreement ensued on whether Dominion disputes should or could be referred to the Court. The Irish delegates outlined their political problems—it would be portrayed as a surrender of sovereignty if they gave away even a theoretical right to bring a dispute with Britain to the Permanent Court. At McGilligan’s suggestion, a sub-committee of Costello, Hurst, the South African Eric Louw, and the Australian Sir William Harrison Moore was set up to look at what sort of acceptable alternative to the Permanent Court could be established to deal with Commonwealth disputes. Having first cleared his suggestion with Costello, Louw proposed that the members of the Commonwealth should agree not to refer any disputes to the Permanent Court pending the next Imperial Conference.82