In November, Fine Gael finally got round to formally agreeing its policy at a Standing Committee meeting attended by Costello.79 The 25 points included the voluntary reunion of Ireland as a member of the British Commonwealth; direct negotiations with Britain to end the Economic War, with complete remission of Land Annuities and Agricultural Rates pending a settlement; “unconditional opposition to Communism”; abolition of Proportional Representation; organisation of “agricultural and industrial corporations with statutory powers … under the guidance of a National Economic Council”; a Reconstruction Corps to put able-bodied unemployed people to work; a Ministry of Housing; encouragement of sporting activities, as well as “the awakening of a spirit of self-reliance, dignity and discipline in the rising generation, and the inculcation through the Young Ireland movement of the ideal of voluntary disciplined public service”; maintenance of free speech; and the preservation of the Irish language.80
The document was a compromise between the various constituent parts of Fine Gael, and while there were echoes of Mussolini—such as the emphasis on sports and voluntary disciplined public service, as well as the agricultural and industrial corporations—it was certainly far from fascist. Costello later downplayed the influence of corporatism on Fine Gael. “I don’t know very much about it, never did, but that was the thing that was hung on to by O’Duffy and some—only some—of his followers … I didn’t stand for it, Cosgrave didn’t stand for it, the bulk of the party didn’t stand for it, and certainly there wasn’t two per cent of that amalgamated party would have anything to do with Fascism.”81
Meanwhile, O’Duffy’s increasingly intemperate speeches were causing concern in the ranks of the new party. According to Costello, “he had been causing us tremendous trouble by speeches around the country, you never knew what he was going to say”. In Ballyshannon, Co. Donegal, on 9 December, he gave the Government its chance with a particularly incendiary attack: “I say as a Republican myself that … whenever Mr de Valera runs away from the Republic and arrests you Republicans, and puts you on board beds in Mountjoy, he is entitled to the fate he gave Mick Collins and Kevin O’Higgins. He does not understand the people of this country because he is a half-breed.” The detective inspector who served a summons on O’Duffy reported that in his opinion “the General was under the influence of alcohol”. As John Regan observed, “to elect to the leadership of the new party either a covert republican or a drunk would have been unfortunate. To elect both was carelessness.”82 O’Duffy defiantly insisted that he would address his next scheduled meeting, at Westport on Sunday 17 December, where he was arrested, complaining later that members of the force he had created dragged “their former commissioner ignominiously through the streets”.83
On the Monday, Costello made a late-night application at the home of High Court Justice Johnston for an order of Habeas Corpus to secure O’Duffy’s release. The judge wouldn’t give the order, but did give the legal team (which included McGilligan as well as Costello) leave to appeal to the High Court.84 Mr Justice O’Byrne found, in effect, that O’Duffy had been arrested for wearing a blue shirt, which was not a crime, rather than anything specified under Article 2A, and ordered his release.85 As his biographer has pointed out, it was “the sort of technical decision that had infuriated O’Duffy when commissioner”.86 But it was a major propaganda victory for the Blueshirts, and a legal triumph for Costello, who after all knew better than anyone the intricacies of Article 2A. His successor as Attorney General, Conor Maguire, noted that the Public Safety Act was “a very unwieldy instrument save for the one purpose it was designed, viz. to deal with the IRA”.87 But the Government was determined to take action, and two days after his release, O’Duffy was arrested on five new charges.
The summons, issued on 22 December, ordered him to appear before the military tribunal at Collins Barracks on 2 January. The first two charges related to membership of an unlawful association contrary to Article 2A—the association in question being the National Guard between 22 August and 8 December, and the Young Ireland Association between 8 and 17 December. The other charges related to his speech in Ballyshannon—he was charged with sedition, incitement to murder President de Valera, and attempting to incite murder.88 In an affidavit, O’Duffy pointed out that the Young Ireland Association had been dissolved on 14 December after a Government ban (it was immediately replaced with a new organisation, the League of Youth), that the National Guard ceased to exist in September, and that at the time of swearing his affidavit he was not a member of either organisation (which was hardly surprising if they had ceased to exist). He further denied sedition or in any way inciting or attempting to incite anyone to murder de Valera at Ballyshannon or anywhere else.89
On New Year’s Day, his legal team won a conditional order from the High Court, which gave the tribunal 10 days to show why it should hear the charges. The tribunal suspended its case against O’Duffy pending the outcome of the High Court case. On 21 March, the High Court ruled that O’Duffy could be tried on the first two charges but not on the other three, which should have gone before the ordinary courts. Mr Justice Sullivan, President of the High Court, said it would be “a revolting absurdity” to suggest that the tribunal could try any offence of any description, or that it could not be held to account by higher courts. While the charges of illegal membership were within the scope of the tribunal, because they were based on Article 2A, the sedition and conspiracy charges were not. The Justice said those offences could only be dealt with by the tribunal if a minister certified that the offences were aimed at impairing or impeding the machinery of government or the administration of justice.90 O’Duffy appealed the decision to allow the first two charges to the Supreme Court, where Costello was again on his legal team, along with A.K. Overend, Vincent Rice, Cecil Lavery and Patrick McGilligan.91 As it happened, the appeal was not pursued, being overtaken by events.
Costello scored another significant legal victory in the case of Captain Patrick Hughes, who had been sentenced to two years in jail by the tribunal for the attempted bribery of a detective. The High Court accepted Costello’s argument that the tribunal did not have jurisdiction to convict him for the offences stated.92 As a result, the Executive Council had to release 33 prisoners convicted by the tribunal as they were liable to successful challenge in the High Court.93 In fact, the legal onslaught on the Blueshirts was remarkably unsuccessful (partly because of the way legislation was worded, partly because of an absence of illegal behaviour). Of the total of 38 Blueshirts charged with membership of an unlawful association after August 1933, 13 had a nolle prosequi entered, seven were found not guilty, 13 received non-custodial sentences, and just five were jailed.94 As Costello put it later in the Dáil, “We found a way … to meet the injustices meted out to some of our supporters … We found gaps through which people could creep.”95
In an effort to close some of those gaps, the Government introduced legislation banning the wearing of uniforms on 23 February—the Bill on which Costello made the infamous speech quoted at the start of this Chapter. When the Seanad refused to pass the Bill, thereby delaying its enactment by 18 months, de Valera published legislation to abolish the upper house. This action “illustrated why de Valera’s commitment to democracy was genuinely doubted by the opposition”.96 Costello played a prominent role in opposing the abolition of the Seanad, claiming that it was “really the only safeguard which the Irish people have at the present moment for the safeguarding of their rights and liberties”. He claimed de Valera had introduced it in “a fit of Presidential pique”, and that if the upper house was abolished the Constitution could be amended in any way the Executive Council saw fit. “A decree of the Executive Council will be law in an hour if they like, and a resolution of a Fianna Fáil club will be law in half-an-hour … We believe that the Government … will be hitting the death blow at democratic rights in this country.”97 He also opposed the abolition of university representation in the Dáil, taking the line that equal opportunities, rather
than equal rights, were the essence of democracy. Everyone had the opportunity of going to university, and therefore “the person who has idled around as a corner-boy” should not have the same rights as he, who had “worked hard all the years of my life”.98
Following the successful legal challenges to the military tribunal, the legal wing of Fine Gael initiated another case, seeking a High Court direction that the League of Youth was not an unlawful organisation. The effect of this was to put a stop to the Government’s serial banning of each new identity adopted by the Blueshirts. Costello was one of the plaintiffs in the case, as well as a member of the legal team. The argument advanced was that the League was “an integral part of United Ireland and subject to the control of the National Executive”, adding that the party was “the recognised constitutional Opposition party”. The statement of claim set out the objectives of the organisation, and pointed out that while the Executive Council had declared both the Young Ireland Association and the National Guard unlawful, it had not given “any indication of acts alleged to have been done for either of the said Associations grounding or justifying the opinion of the Executive Council”. The Government’s defence was based on Article 2A, arguing that the declaration by the Executive Council that the League of Youth and the National Guard were unlawful was by definition proof that they were; and that if the League of Youth was similarly declared unlawful, the courts had no power to interfere in the Executive Council’s action. The Attorney General argued that the plaintiffs were seeking “judicial declarations of an academic character … upon a matter as to which jurisdiction to pronounce an opinion, conclusive for all purposes, is by the Constitution conferred upon the Executive Council”.99 By the time the court finally ruled in favour of Costello and the other plaintiffs, the League of Youth had ceased to exist100—but the tactic had succeeded in preventing another Government ban.
Costello was also one of the counsel in an unsuccessful attempt to have Article 2A declared unconstitutional, after leading Blueshirt Jerry Ryan was charged with shooting with intent to murder. A Department of Justice memorandum on the case noted that Costello had been Attorney General when the article was introduced in the first place. “Making all allowances for the latitude allowed to politicians and lawyers there is something very strange and distasteful in this extraordinary volte face: it certainly makes it very difficult to believe that the persons concerned are guided by any principles.”101
De Valera’s attempts to put the Blueshirts on the wrong side of the law met little success. Luckily for him, the spur of the hardship caused by the Economic War led O’Duffy into increasing extremism which caused the movement to implode. Urging farmers to withhold annuities and rates in protest at the Economic War made sense to many in the party’s grassroots, but it greatly alarmed the constitutional wing of the party, including Costello, Cosgrave and Dillon. O’Duffy’s rhetoric was equally disturbing. According to Costello, Dillon upbraided the general, telling him that he was magnificent as long as he stuck to a script, “but let any old woman in the crowd shout ‘Up de Valera’ and God only knows what you will say!”102
With O’Duffy encouraging the Blueshirts to withhold annuities and resist the seizure of cattle, clashes with the Gardaí increased. On 13 August 1934, a young member of the organisation, Michael Lynch, died during an attempt to disrupt a sale at Marsh’s Yard in Cork. The Blueshirt annual conference in the Mansion House the following weekend adopted a motion calling on farmers not to pay their annuities unless the Government agreed to suspend collection for the duration of the depression. Michael Tierney pointed out the choice facing Fine Gael: “Reject the resolution and weaken O’Duffy, or accept it and take part in an organised campaign of resistance to payment which I don’t think any responsible political party could dream of standing over …”103 When the National Executive of Fine Gael met on 30 August, a compromise proposal was put forward, declaring that members should only resist cattle seizures in ways “consistent with the moral law”. Costello, along with Tierney and Patrick and James Hogan, strongly argued that the word “moral” should be deleted. This would have kept Fine Gael within the law of the land, rather than the less easily defined moral law. According to Tierney, Cosgrave resisted this change because “he is keen on morality!”104
In a letter to Seán MacEoin, O’Duffy complained that the National Executive meeting “shattered all my hopes” for the National Guard, particularly “all the talk we had about the moral law … I had two letters today from bishops, advising me of the position—neither even referred to the moral side, and I do know that the bishops will keep us safe on this …” He added that he was still undecided about “what is best to do in the interests of the organisation—to get out quietly, or to try to carry on for another while”.105 James Dillon attempted to broker an agreement that would keep the General under control, with weekly meetings between him and the Vice-Presidents “to discuss all matters arising from the activities of the League of Youth”, written scripts for all speeches, and written rather than oral replies to press queries.106
O’Duffy’s letter to MacEoin indicates he wasn’t happy with the arrangement; a letter to Costello shows that Cosgrave wasn’t happy either. He complained that O’Duffy regarded party policy as “elastic”, to be changed as circumstances dictated. “He objects to the strait jacket and apparently has little thought for the strait jacket he puts on others.” Cosgrave saw himself at odds with Dillon, who would be happy with “a patch up”, while he believed they were faced with “a vital and fundamental difference of opinion”. Cosgrave said that “so far as I am personally concerned the Government political policy is safer than the General’s”. He thought it might be possible to reach a temporary accommodation with O’Duffy, but that rehabilitating him in the public mind would be “an almost insuperable job”, that he was quite likely to break his word, and that “on a platform with others he may at any time precipitate a controversy”.107 On 20 September O’Duffy submitted his resignation after failing to reach agreement with the three Vice-Presidents he had been dealing with, Cosgrave, Cronin and Dillon.108 Ned Cronin took over as head of the League of Youth, but was in turn asked to resign in September 1936.109 He emigrated to England, having ruined himself financially through his involvement in the Blueshirts. Costello later invited him to return to Ireland to act as an advisor to his first Government, but he died on his return to Dublin.110
In a front bench reshuffle following O’Duffy’s departure, Cosgrave asked Costello to “accept a roving Commission over certain … general matters”.111 He fulfilled this commission, speaking on a wide range of subjects, including external affairs, finance, and of course legal matters. He also addressed other issues—such as the teaching of Irish. While he supported the aim of restoration, he accused the Government of attempting to “ram the Irish language down the necks of the Irish people”, saying that an exclusive concentration on the language “will reduce the people of this country to nothing less than a set of ignoramuses”. He accepted that the policy of teaching through the medium of Irish had been followed by the Cumann na nGaedheal government as well, but argued that it was “going to kill the Irish language”.112 In contributions foreshadowing his establishment of the Arts Council as Taoiseach, he stressed the importance of teaching art in primary and secondary schools “with a view to its subsequent application to industry”.113 He also wanted the School of Art to take up this aspect, pointing out that “the biggest industrial firms in England pay huge salaries to the best artists they can lay their hands on for designing the goods which they hope to put on the markets of the world”.114
His Dáil speeches revealed a genuine concern for his poorer constituents, particularly regarding their housing. In 1934, he said he had “seen pretty bad slums in the City of Dublin—I know them fairly well—but I have never seen anything to equal the housing conditions in the village of Dundrum”.115 A year later, he spoke of the difficulty of dealing with constituents from Ringsend seeking houses—“it is a h
eart-breaking experience for a public representative to have to tell the people who come up with genuine stories of housing conditions, which are appalling to listen to, that he is unable to do anything for them …”116
He showed an interest in foreign affairs, which Cosgrave recognised at the start of 1936, when he appointed Costello and John Marcus O’Sullivan as front bench spokesmen on External Affairs.117 Costello had already criticised de Valera (as Minister for External Affairs) for not giving a fuller exposition of the international scene each year on his Department’s Estimates. “I shall continue to press as long as I am on this side of the House, that the Department of External Affairs should be taken seriously.”118 He also repeatedly stressed his belief in the importance of Commonwealth membership, which he believed gave Ireland “an opportunity of exercising a very deep, wide and beneficent influence in international affairs”.119 There were also, he argued, “solid practical advantages for our people” in the Commonwealth, especially when abroad.120 As he put it in an address to the National University branch of Fine Gael: “I have no objection to being what is called a British subject, but I am quite certain that I am not going to lose my Irish nationality, and the two things are not incompatible.”121 He accepted that “if we had a Republic it would be another matter”, but while Ireland was in the Commonwealth “we have very practical rights which can be obtained as a business proposition for the citizens of this country”.122 He also urged de Valera to send representatives to a planned Commonwealth Economic Conference, arguing that it would allow him to “put his hands as deeply as he possibly could into the pockets of John Bull and extract as much British gold as he could extract”.123
The Reluctant Taoiseach Page 18
