The Reluctant Taoiseach

by David McCullagh

  The matter was then referred to a full meeting of the Commonwealth delegations. The British suggested they should make a statement indicating that the reservations they attached to their signing of the Optional Clause had no effect on the international standing of the Dominions established at the 1926 Imperial Conference. Costello pointed out that nobody had suggested the British were trying to repudiate the 1926 Conference, and that their proposed statement was “in essence an insult to the British Government under their own hands”. The Foreign Secretary, Arthur Henderson, “at this stage got greatly annoyed and stated that the British Government were entitled to insult themselves if they liked”.83 It wasn’t the last time Costello would get under the skin of a British Labour politician.

  Faced with this impasse, the Irish decided to go ahead and sign the Optional Clause without reservations. Costello advised that the British should be given as little notice as possible, “so that they would not be in a position to make an effort to obtain a group signature”. McGilligan signed at 3.30 p.m. on Saturday 14 September 1929.84 Having concluded their work in Geneva, Costello and McGilligan now turned their attention back to London, where an attempt was to be made to tease out some of the technical issues left over from the Imperial Conference of 1926.

  Chaired by the Dominions Secretary, Lord Passfield (formerly Sidney Webb), the official title of the meeting was the Conference on the Operation of Dominion Legislation and Merchant Shipping Legislation. It opened on 8 October and finished on 4 December—a long time, but valuable from the Irish perspective because it set the ground for the 1930 Conference and the 1931 Statute of Westminster. McGilligan led the Irish delegation, with Costello in a very prominent role, along with O’Hegarty, Walshe and Hearne.85 The Irish once again refused the British offer of hospitality during the conference.86

  As John Hearne observed in advance of the conference, the merchant shipping legislation and the Colonial Laws Validity Act “illustrate the system which is now obsolescent better than any other statutes that we know”. The 1894 Merchant Shipping Act limited the power of a Dominion to alter the Act, requiring the King’s permission before changes were made.87 The practical effect was that the Free State had been unable to legislate in this area, and while the tricolour was flown on Irish ships, it was not legally recognised.88

  On the eve of the conference, Costello wrote to Education Minister John Marcus O’Sullivan reporting on meetings with the South African and Canadian delegations. The former were “quite sound on all points” and “were entirely ad idem with us”. They agreed that everything contrary to the declaration of equality agreed in 1926 must go: reservation (under which Dominion legislation couldn’t come into force until the British had approved it); the Colonial Laws Validity Act; restrictions on extraterritorial and shipping legislation. He was agreeably surprised by the Canadians: “Their attitude is more satisfactory than we ever dared to hope for. If they stick to their present intentions we ought to have a clean sweep.” There was one potential fly in the ointment, though, which Costello explained with typical hyperbole. The British wanted special arrangements under which all Dominion Parliaments would agree on certain matters, such as the succession to the Crown. As Costello explained, the Irish had a difficulty with the provision relating to the religion of the monarch (who could not be a Catholic). But the Canadians said “if that point is raised by us they must go home at once. At a recent provincial election a Liberal Government was swept out of office in a Liberal Province by a Ku Klux Klan performance on a religious issue, of less importance than the religion of the King.” The Canadians feared a political backlash at the next Federal election if religion became a Commonwealth issue, and Costello felt that as they “are so friendly and so intent on making constitutional advances we cannot afford to put them in a hole politically”.89

  The British too had their problems, and just over a week after the opening of the Conference, Passfield called an emergency meeting of Heads of Delegation. He warned that unless he received assurances on certain issues, he would have to advise his Cabinet the following week “that there was no likelihood of a unanimous report emerging from the main Conference”. His intervention was sparked by discussions that convinced him he couldn’t “join in the recommendations that were obviously in the minds of certain of the Dominion delegations”. The key difficulty concerned the Crown—he wanted the report to confirm the maintenance of the existing legislative structure, and to promise consultation between all Dominions if any change was proposed.90 The Irish delegation felt they should not jeopardise the report by “making trouble” on the issues involved, “provided the British proposals … are not substantially altered for the worse”, and this approach was approved by the Executive Council.91

  Costello’s main role was on the committee looking at the Colonial Laws Validity Act. The Committee was named after its chairman, Sir Maurice Gwyer, the British Procurator General and Treasury Solicitor (a senior legal advisor to the Government). At the first meeting, the minutes recorded the general view that the parliament of a Dominion should not be given power to alter the fundamental provisions of its constitution. Costello wrote on the minutes that both he and the South African delegate had objected to this statement, but their objections were not noted.92 Three days after this first meeting, Gwyer produced a draft of the law which would become the Statute of Westminster. He included a provision excluding Dominion Parliaments from amending their constitutions.93 This was clearly going to be a major source of tension between the Irish and South Africans and the rest.

  Diarmuid O’Hegarty reported to Dublin that progress on various issues, such as shipping, extraterritoriality and reservation, was “rather satisfactory”. But in relation to the Gwyer Committee, he pointed out that while the Colonial Laws Validity Act would be repealed, three matters had not been settled: the reference to the Crown; the amendment of Dominion constitutions; and the suggestion of a Commonwealth Court. He explained the British worry that with reservation and the Colonial Laws Validity Act gone, the Irish “could repeal any law of the Imperial Parliament in so far as it relates to us, including the laws relating to the Crown”. The British viewed the Treaty as being based on British law (a view the Irish did not accept, as they saw it as an agreement between two states) and therefore vulnerable to amendment in the new dispensation.94 Costello, then, was in a central position, dealing with the most contentious issues facing the Irish.

  On 12 November Costello flatly rejected a British proposal for a permanent Commonwealth Court to arbitrate in disputes between governments. To his fellow lawyers on the Committee, he poked fun at judges in general: “We must leave a Permanent Court out of mind. How would a Permanent Court consisting of judges set to work? We all know what judges are, how they spread themselves and deliver judicial homilies, but I cannot say judicious homilies.”95 However, he said he would consider an ad hoc body of at least five members.

  Two days later, he raised the issue of the King’s religion—which the Canadians had claimed would lead to them walking out of the conference and going home (it didn’t). He explained to his colleagues that if his Government had to introduce legislation relating to the religion of the King it would “inevitably raise a religious discussion”. He argued that instead of legislation, there should be a declaration of the Imperial Conference that the succession would not be altered without the consent of all the Dominions. The Australian delegate, Sir William Harrison Moore, objected that this would not be enough, as any Dominion could simply legislate to remove the Crown entirely. To which Costello replied, foreshadowing de Valera’s introduction of the External Relations Act, and his own repeal of it, “Then you just walk out of the Commonwealth …” The South Africans indicated their view that they already had the right to secede. Gwyer complained that Costello’s proposal would create seven Crowns, one in each of the Dominions, rather than the “one undivided unified Crown” which the British believed existed for the whole Commonwealth.96 This was precisely the principle the Irish we
re trying to establish—a “several” rather than a unitary Crown, to recognise the complete independence of the members of the Commonwealth.

  At a further session, Costello claimed the Irish were taking “a big political risk in going into this question of an agreement relating to the Crown”. In return, they wanted to be sure that there would be no exceptions to the repeal of the Colonial Laws Validity Act—that all of the Dominions would have the right to repeal any British statute which had been passed applying to them. He said the Free State could repeal its constitution in its entirety, but that the Treaty would remain, a document which had for them “a certain sacredness, as those who have followed events in the Irish Free State during the past few years must know” (which would not be much consolation to the British if the opponents of that document came to power). Rather than a “rigid” and “formal” legal approach, the Irish sought uniformity through agreement and reciprocal action. He had made a number of suggestions to Gwyer the previous evening about how the draft Bill (the future Statute of Westminster) should be drawn up. Gwyer said he “was impressed by his views, and I think we could put down something … designed to meet points discussed between Mr Costello and myself last night”.97

  This co-operative atmosphere disappeared very quickly, however, after the publication of a document following a Heads of Delegation meeting on 17 November which stated that the report would be an experts’ report only. At the following day’s session of the Gwyer Committee, Costello claimed this meant they were precluded from considering political questions at all. “The Irish delegation were prepared to make agreements upon the Crown and any other matters that might call for an agreement. We were prepared to give way here and there for the sake of getting an agreed report. But if this is to be an experts’ report merely, I will not take part in discussion of any single topic that is of a political character.” The Canadian Oscar Skelton agreed that it was “a preposterous document, radically erroneous and impossible of acceptance by us”.98

  When Gwyer suggested continuing with the work, and allowing the conference to make the decisions, Costello testily replied, “We have met the British Government everywhere, and at every stage when an agreement seemed to be in sight something was done—I do not say deliberately—but something was definitely done which prevented agreement from being arrived at.” He went on to accuse the British of “stirring up religious war … I would not have it on the records of my Department that I had signed a document … related to the Crown and yet did not raise the question of the religion of the King at all. Surely, Sir Maurice, you realise what would be said …” He agreed to Gwyer’s suggestion that they continue, in the legal phrase, “without prejudice”, but observed that they were further away from agreement on certain issues than they had been a few days before.99

  The Committee then moved on to consider a British proposal that the final report should contain an undertaking that the Free State regarded the terms of the Treaty (or “Articles of Agreement” as the British insisted on calling it) “as so fundamental in character as to be inviolable and beyond the scope of the ordinary law”. Costello again dug his heels in, saying McGilligan would not be prepared to sign a report containing this provision. He was again supported by Skelton. Costello also objected to what he saw as a suggestion that the Free State Constitution derived from an Imperial statute. He said the relevant paragraph was unacceptable—and so the Committee agreed to defer discussion on its application to the Free State.100

  The day’s discussions ended with nationality—a question which Costello observed with commendable understatement “has been causing us a certain amount of difficulty for 700 years or so”. He rehearsed the Irish case that they were “a mother country, an unadulterated nation”. He referred to the difficulties they had with the British regarding passports. London wanted the expression “British subject” used; Dublin felt “Irish national” was sufficient. Costello insisted that separate nationality must be recognised, arguing that if someone qualified as an Irish national, then the status of “British subject” would be implicit in that. He also used the analogy of shipping. The Conference had heard suggestions of a common status of ships registered in the various ports of the Commonwealth—could something similar not be done for nationality?101

  Gwyer returned to the paragraph relating to constitutional change two days later, asking Costello if he had any alternative to propose, but the Irish Attorney General stonewalled, saying the “time has not come for me to make any suggestion … I have already indicated my views on that paragraph.” However, despite what might have been seen as an obdurate approach, it was Costello who was asked by Gwyer to draw up a rough draft of the matters that had been agreed. He said he would, but took another pot shot at the British, claiming there had been a lack of clarity in previous drafts that caused confusion. When the British suggested there had been a moment when the delegates had been in agreement, Costello replied, “On which of the five drafts?”102

  The final draft specifically excluded the right to amend the constitutions of Canada, Australia and New Zealand103—but crucially did not extend the exclusion to the Free State or South Africa, an omission that would later be challenged by Winston Churchill, as we will see below. On the proposed Commonwealth Court, the Gwyer Committee recommended further discussion, but again agreed with the Irish view that it should be an ad hoc, rather than permanent, tribunal, and that it should be limited to disputes between governments.104 In other words, it would not be the Privy Council by another means. At the final session of the main conference, at which the report was agreed, McGilligan paid tribute to the work of the Gwyer Committee, which he said had the most difficult task of all those set up by the Conference. The Irish Minister also hailed the progress of equality and free association, saying the obstructions to co-operation “were removed as far as principles are concerned by the Report of 1926, and removed in detail by the Report we now have before us, and when that Report comes to be accepted next year at the Imperial Conference it will, I think, prove very definitely to be the last remaining obstacle to the freest co-operation with all the members of the British Commonwealth of Nations”.105 The report, according to David Harkness, “was both an end and a beginning. It marked the destruction of the old Empire as well as the creation of the new Commonwealth.”106

  As the 1930 Imperial Conference approached, the British circulated a detailed agenda, covering a wide range of issues, including trade, agriculture, research, statistics, transport, communications and overseas settlement. Joe Walshe noted with considerable suspicion that the agenda “is drawn up on a much more comprehensive scale than has ever before been attempted, and it gives the definite impression that some sort of centralisation on the economic side is to be attempted”. He advised an urgent critical examination of the proposals.107 As Attorney General, Costello was closely involved, with Walshe forwarding him an economic policy document from the Federation of British Industries before it was sent to ministers.108 He was not, however, a member of the official delegation, which was made up of McGilligan, FitzGerald and Agriculture Minister Patrick Hogan.109 Cosgrave’s possible attendance was left open,110 but in the event he was ill at the time of the Conference (he complained to McGilligan that he had been sick in bed for four days, although it appears he was suffering from nothing worse than a bad cold).111

  The Irish were interested in constitutional, rather than economic, matters. Some weeks before the Conference opened, McGilligan wrote to Dominions Secretary Jimmy Thomas outlining the issues he wanted brought up. He was particularly forthright about the Privy Council: “The existence of an extra-State institution claiming without any form of democratic sanction to exercise jurisdiction in the … internal affairs of the Irish Free State remains a menace to our sovereignty.” The Irish were also concerned at the lack of direct access to the King for Dominions, believing that advice to the monarch should come direct from the government concerned, not through the British. They wanted to clarify the inter se applicability
of treaties to remove any misconception that the members of the Commonwealth constituted a single sovereign State. And they wanted direct communication with foreign governments, rather than having to go through the Foreign Office in London. McGilligan concluded that “the elimination of the foregoing difficulties at the Conference will allow the delegates to examine with freer minds the important economic problems which are listed for their consideration”.112

  A confidential briefing note from the Department of External Affairs for the delegates put direct access to the King at the top of their concerns, because “the defective channel of access is at the root of all the difficulties in the way of the external self-expression of the Dominions”. Royal approval for diplomatic documents was only given after a British Secretary of State signified his agreement—which naturally led foreign governments to see the Commonwealth as “an organic unit” rather than a collection of independent, sovereign states. The obvious solution was to have such documents issued in the name of the Governor General rather than the King—but the Irish recognised this would “perhaps be too much to expect the British to accept”, and suggested that the Dominion High Commissioner in London should convey his government’s advice directly to the King, without going through the British Government. The briefing also highlighted nationality (the Irish wanted to eliminate the description “British subject”, while at the same time ensuring that Dominion nationals obtained all the rights and privileges enjoyed by British subjects) and the Privy Council, “the only operative Imperial institution which can be said to make of the Commonwealth a legal and constitutional unit, as distinct from the Diplomatic Unit created by the unified control of the King’s external acts …”113 Finally, the Irish wanted to ensure that when negotiating treaties, the British Government did not “purport to act for the nationals of all the members of the Commonwealth”, as this would imply the Commonwealth was a single sovereign state.114