Costello also argued that Commonwealth membership was “the only possible method of achieving … the unity of Ireland … [as] a free and independent sovereign … state … the outstanding political problem in the country at present was not the question of separation, or to be or not to be a Republic, but the unity of our native land in one nation and under one flag”.124 Those comments were made in the course of a by-election campaign. At other times, Costello advocated a more circumspect approach, calling in the Dáil for a policy of silence, “broken only very occasionally, merely to show that we have not forgotten our brethren in the North … The less that is said about it the better … Discreet work behind the scenes is the way to end Partition.”125
As a leading barrister, he was a knowledgeable contributor to debates on legislation affecting the practice of the law, admitting that he did so at least partly as “a member of a trades union”.126 He occasionally explicitly stated that he was giving the views of the Bar Council, as when urging that the Court of Criminal Appeal should be made up of three High Court judges, instead of the existing composition of two High and one Supreme Court judge which was favoured by the judiciary.127
Costello objected vociferously to the Courts of Justice Bill which provided among other things for the appointment of two extra Supreme Court justices, on the grounds of cost and the lack of work for the new judges to do. His explanation of the terms of the legislation, and the £3,000-per-year cost of the new judges, convinced the Fine Gael parliamentary party to oppose the Bill.128 In the Dáil, he pointed out that much of the ordinary work of the courts had been farmed out by government to the military tribunal, or the new Land Commission Tribunal, or to County Registrars (who had taken over land annuities cases). He complained that “there never was, certainly not in the last twenty years, a period when there was so little business doing. The Bar is feeling the pinch and … there never was so little business in the Supreme Court in my time.” He also made a heartfelt case for the provision of stenographers in all High Court cases, rather than having to rely on the judge’s notes, and objected to provisions for disciplining district justices, arguing that it would compromise their independence.129 He later claimed that the extra appointments would give the Government “a blank cheque to raid the taxpayers’ resources and also to rob litigants”, who he argued would face higher costs. The Attorney General, Conor Maguire, dryly observed that “Deputy Costello is carried away by his own oratory, and I doubt if his belief is as deeply seated as his words would suggest.”130
As the Courts of Justice Bill made its way through the Dáil, the Chief Justice, Hugh Kennedy, urged the Minister, P.J. Ruttledge, to make the wearing of wigs by judges and barristers optional, as well as abolishing the practice of addressing judges as “My Lord”—he suggested either the Irish “A Bhreithimh” or “Sir”. Ruttledge agreed in principle, but Maguire warned that the abolition of wigs would “arouse a storm of protest amongst members of the Bar and would be likely to give rise to fierce controversy”.131 In the Dáil, Costello sought an assurance from the Minister that the representations he had received “about robes and modes of address do not affect members of the Bar”—indicating he was siding with tradition rather than with Kennedy, his former mentor.132 In a debate during the war on the effect of clothes rationing, he raised the plight of newly qualified barristers whose “coupons are all swept away buying wigs and gowns … They are as necessary for us in earning our living as a knowledge of law is.”133 His traditionalism on legal matters was also evident when a High Court judge suggested Ireland might adopt the Continental system of examining magistrates. Costello told the Irish Times that the existing system, derived from Britain, was “the finest in the world. Anything that is wrong with the system arises from abuse and non-adherence to its fundamental rules.”134
One constant theme pursued by Costello was the question of arbitration in the Civil Service—a question that was to cause (or at least give de Valera an excuse to call) the 1938 election. In July 1935, he closely questioned the Minister for Finance, Seán MacEntee, on the details of an arbitration scheme which had been put to, and rejected by, the staff associations. The exchange, incidentally, is a very good example of Costello’s cross-examination technique, and of MacEntee’s evasive style. The Minister rejected Costello’s suggestion that a deadlock existed between him and the associations, and declined to give any of the relevant details that were sought.135 Two days later, Costello raised arbitration on the adjournment, recalling de Valera’s promise in January 1932 to set up an Arbitration Board and adding, “That specific promise was given, and I think it is incumbent on every party in this House to see that this promise is kept.”136
As a practising lawyer, he also made substantial contributions to technical pieces of legislation, including the marathon debates on the Insurance Bill. There was at least an element of conflict of interest in his contributions. According to the Irish Times, he had been one of a number of leading barristers engaged by the five Irish insurance companies “to look after their interests … It is understood that the lawyers will be asked to advise as to the reactions of the Bill on the interests of the companies concerned, and presumably to suggest amendments when the Bill reaches the Committee stage.”137 During the debate, Lemass accused him of arguing that “insurance law should be framed to meet the desires of the insurance companies”.138
This was slightly unfair—Costello made many sensible suggestions, some of them accepted, and spent a great deal of time on the legislation. At one point, he tormented Lemass over his proposal that life and other insurance should be separated, a legal requirement in other countries according to the Minister. Along with McGilligan, he rather unkindly pressed Lemass to give details of the legislation in other countries, details which were clearly not in his brief and which he couldn’t supply.139 The next time the Bill was before the House, the Minister was able to quote chapter and verse of the foreign legislation, but it had been an embarrassing lapse for the normally well prepared Lemass.
There was certainly an element of self-interest in his opposition to the proposed tribunal to arbitrate insurance claims. He said such matters should be dealt with in court, rather than in “bastard tribunals that would be held in a hole-and-corner way by non-lawyers and behind closed doors”.140 According to a legal colleague, passage of the Bill led Costello to lose cases from Irish Life, but he apparently accepted the loss philosophically, observing that “God never closed one door but He opened another.”141
Another bugbear was the powers of the Revenue Commissioners, which he urged should “be exercised reasonably … not … used as an instrument of tyranny.” He argued against the reopening of tax returns by the Revenue, citing the legal principle that “it is better for the law to be certain than just. It is better that there should be some finality to these transactions even though a fraudulent person gets away with it occasionally, and it is not very often that a fraudulent person gets away with anything very substantial …”142 On another occasion, responding to a charge by MacEntee that he was being unfair to the Revenue Commissioners, he argued that he was not interested in their “tender feelings”, but in those of the taxpayer, “for whose very tender feelings the Revenue Commissioners have no feelings whatever, whether he is suffering any hardship or not”.143
During Cecil Lavery’s successful by-election campaign in Dublin County, Costello argued that “if Fianna Fáil retained power much longer it might be impossible for a future Government to save the country from the mess” it had caused.144 His jaundiced view of Fianna Fáil was reinforced later that month with a controversy over alleged corruption involving mining leases in Wicklow. The allegations, made by Patrick McGilligan, were that two members of the Government party, Deputy Bob Briscoe and Senator Michael Comyn, had secured the leases through political influence with the Minister, Seán Lemass. In the debate on the establishment of a select committee to investigate the controversy, Costello objected to the limited terms of reference, accusing Lemass of
“trying to side-track the real issues”. Lemass confirmed that the Committee wasn’t being established to try him or his department, but was “set up in the first instance to try Deputy McGilligan … to find out if he had any foundation for these allegations”.145 Costello was appointed to the Committee, which was chaired by Labour leader Bill Norton. But a row was caused by Fianna Fáil’s refusal to let McGilligan be a member—a refusal characterised by Costello as the first time in the history of the State that the Opposition had been denied the right to nominate whoever they wanted to such a Committee. The reason given was that McGilligan was the accuser—but as Costello pointed out, Lemass was “going to make him the accused”.146
However, Costello did an effective job of making Department officials feel like the accused—R.C. Ferguson, Assistant Secretary of Industry and Commerce, “protested that the cross-examination of Mr Costello was very unfair”. He had been under pressure as to whether he had treated the application by Briscoe and Comyn any differently because they were members of the Oireachtas, and of the Government party. He insisted that he treated it as he would from any member of the public, and that he had not consulted Lemass about the matter.147
Costello evidently found the Select Committee approach effective, for he sought to use it for an investigation into the sacking by the Government of the Secretary of the Department of Local Government, E.P. McCarron. There were a number of reasons for Costello’s interest, apart from the obvious political advantage of embarrassing the Government. The first and most important was his long-standing support for the proper treatment of officials—as he said during the debate on his motion to appoint a Select Committee, his first speech in the Dáil concerned the sacking of another senior official (O’Duffy). Secondly, McCarron was also a former O’Connell School boy. And thirdly, the immediate cause of his dismissal was an appointment to Grangegorman Mental Hospital—an institution with which Costello’s father had been involved. Costello argued that it was in the public interest “that public officials—both governmental officials and officials of local authorities—should be assured of the security of their tenure, and that they should feel that in exercising their functions they are entitled to exercise them irrespective of the political policy of the particular Government for the time being”. He said ministers were entitled to receive independent advice, “otherwise the Civil Service is nothing but a corrupt political machine and the sooner it is got rid of the better”.148 The Government treated the motion as one of censure, and it was duly defeated, de Valera arguing that a Dáil committee could not review or revise the decisions of the Executive Council, because “on that day that Government has to disappear”.149
In opposition, Fine Gael was very much in the doldrums. In January 1935, a meeting of the party’s Standing Committee had to be abandoned for the third week in a row because of poor attendance. Costello was one of just four members to show up. Ned Cronin, who was in the chair, complained it “was impossible to have any work done either at Headquarters or in the country so long as members of the Executive Committee … showed such apathy in attending meetings”.150 Costello played a prominent role within the organisation, serving on committees to prepare statements of the party’s policy and to select by-election candidates.151 He was also on a committee set up after “grave dissatisfaction was expressed at the poor attendance of the Party in the Dáil”.152 He himself couldn’t be accused of not pulling his weight—he was a frequent, forceful and effective contributor to Dáil debates. But he was far from being a full-time TD, with his appearances in the Chamber largely limited to the late afternoons or evenings—he urged the Minister at one point during the debate on the Courts of Justice Bill to delay the resumption of the debate “until we are able to be here in the House when we come from court tomorrow”.153
Behaviour like this understandably contributed to an image of Costello as something of a political dilettante. As a supporter of Noël Browne put it, he and his ilk were guilty of “turning up in the Law Library and earning your income down there and then strolling down to the Dáil and getting another job down there as part-time, which is what the John A. Costellos of this world were at—they were immensely rich people dabbling in politics”.154 In fairness, Costello never claimed to be a full-time politician—quite the opposite. He frequently said he would not like being a full-time TD. “One job helped the other, and politics helped to broaden attitudes. If you spend all your days at the law, you tend not to be able to talk about anything else.”155 In a letter to Seán MacEntee, proposing a system of pensions for former ministers (from which he excluded former Attorneys General—it was a completely altruistic proposal), he said such pensions should not be so high that they would create “a class of professional politicians with no interest to serve but their own”.156 After his retirement from politics, he said an election was unlikely in 1971 because at least 96 per cent of the Fianna Fáil TDS relied on their Dáil salaries for their livelihood. “It is an evil thing, which is a consequence of having full-time politicians in the Dáil.”157
But Fine Gael’s problems went deeper than the desultory approach to Dáil business by many TDS. In a thoughtful letter to Cosgrave in September 1935, Mulcahy reported on his impression of the views of the public, gleaned when giving lifts to people around the country (curiously, he said he was “totally unknown to most of these people”, which even in a pre-television age seems a bit unlikely given his prominent role in recent Irish history). He said Fine Gael was not picking up support being lost by Fianna Fáil, partly because people thought they were the old Cumann na nGaedheal party “with a new name but without a new policy”, partly because they were viewed as “a new imperialist grouping to defend England’s interest in the Treaty”.158 The latter point tied in with Costello’s experience during an election campaign in the 1930s. Waiting in Haddington Road for Mass to finish, he overheard two teenagers discussing the election, and one of them saying, “Sure that fellow Costello is only an old Englishman.”159
Fine Gael had been well and truly lumbered with the reputation of being pro-British, and efforts by leading figures in the party, including Costello, to stress the benefits of Commonwealth membership added to that reputation. De Valera, on the other hand, largely ignored the Commonwealth. After the death of George V in January 1936, he refused to allow the Irish High Commissioner in London, John Dulanty, to sign the proclamation of accession for the new King as his counterparts had done. Dulanty still attended meetings of the High Commissioners, but confessed to his Canadian opposite number that he “felt like a whore at a christening”.160 De Valera was planning to clarify matters in his new Constitution, then in gestation, but his hand was forced by the abdication of Edward VIII. He reacted by recalling the Dáil and introducing two pieces of legislation—one to remove all mention of the Crown from the Constitution, the other to authorise the King to act on behalf of the State in foreign affairs through the accreditation of diplomats and ratification of international agreements.
Costello made a forceful contribution on the proposed amendment of the Constitution. “This Bill creates a political monstrosity, the like of which is unknown to political legal theory … we are to have this extraordinary and ludicrous position—a state of affairs which will make us the laughing stock of international jurists throughout the world—that for one purpose we have no head of this State and for another purpose we have a foreign King as the head of our State. What sort of State is that at all?” He criticised de Valera for not consulting the other members of the Commonwealth (ironic, in view of his own actions in Canada 12 years later), and said in an important passage, which would later be carefully attached to the file dealing with the repeal of the External Relations Act, “I do not care what the position is going to be in this country from a constitutional point of view, provided we know definitely where we stand. I can understand the position, constitutionally and internationally, of this country being a member, a full, recognised, decent member of the British Commonwealth of Nations. I can unders
tand a decent declaration of a republic. But I cannot understand the indecency which is being perpetrated on this country by this Bill … I want at least that it should be definite …” He also suggested that the new legislation actually invested the King “with greater authority, greater force and greater prestige than he had when his Kingship as head of our State was a mere fiction”.161 Curiously, Canadian Prime Minister W.L. Mackenzie King made exactly the same point in the privacy of his diary, suggesting it would encourage a common policy on foreign affairs. “In trying to assert their nationalism, they have really made themselves more imperialistic than we who are retaining the Crown in internal as well as external affairs.”162
When the External Relations Bill was introduced into the Dáil on Saturday 12 December, Costello criticised the first two sections, outlining that diplomatic representatives were appointed, and international agreements concluded, on the authority of the Executive Council. These were completely unnecessary, as they “merely express the existing practice, the existing state of affairs and the existing law of the country. Why then put them into a statute?” He also suggested that the effect of the Bill “which is to give us half a Crown is that it gives no Crown at all”, because it only conferred authority on the King as long as he was recognised as the symbol of the co-operation of Australia, Canada, Great Britain, New Zealand and South Africa. The Crown, he argued, was never recognised as the symbol of co-operation, but as the symbol of free association. Therefore, the Bill could never come into effect.163 He tried on the Committee Stage to change the wording to “free association” to match the reports of various Imperial Conferences and the Preamble of the Statute of Westminster. De Valera said he was prepared to accept “association”, but not “free association”, as he had doubts about how free Commonwealth association really was. He also argued that they should not import phrases into legislation—a suggestion which brought an indignant response from Costello, who pointed out that the words had been put in the Statute of Westminster by the Irish delegation. “Co-operation” stayed, and Costello voted for the Bill along with the rest of the Fine Gael TDS.164
The Reluctant Taoiseach Page 19
