His ability to attract briefs in Cork—where it was difficult for “outsiders” to break in—showed the high reputation which he had as a barrister.52 In November 1958 he told Tom Bodkin he had “spent three continuous weeks in Cork with the High Court”53—missing two weeks of Dáil sittings as a result. Another example came the following March. The Dáil sat on Tuesday and Wednesday the tenth and eleventh; however, the High Court was on circuit in Cork that week. The leader of the Opposition did his best to be in two places at once, travelling to Cork on the Sunday evening, returning to Dublin on Wednesday evening for the only vote of the week (on the Budget), before travelling back down to Cork early on the Thursday morning so he could appear in court.54 The business in the Dáil was not particularly vital on this occasion, but still it was no way to show the country, or Fine Gael, that he was serious about his leadership position.
In opposition, the usual problems of poor attendance by Fine Gael TDS resurfaced. Mulcahy complained to Costello about the running of front bench meetings and the attentiveness of the members: “they should sit to attention in an undistracted way … one of the things that had been completely disturbing to the whole atmosphere and spirit of the Front Bench was the way in which, first, people came in late, secondly that they were not paying attention to what is going on, thirdly they take out a paper and begin to have a conversation about something or other …”55 There was, as the US Embassy noted, “bickering” within the party, particularly on the leadership question, and Dillon for one had been critical of poor Dáil attendances and the front bench’s failure to give a clear lead on policy development.56
Frustrated by the situation, Mulcahy visited Costello at his home in Herbert Park in September 1959. Their discussion on the leadership was recorded in Mulcahy’s typically verbose and convoluted style. What was crystal clear, though, was that Mulcahy held Costello responsible for many of the problems. Mulcahy said he would not lead the party after the next election, either in government or in opposition, and that the two of them had a joint responsibility to give a lead to the party. Costello replied that he had been anxious to avoid giving the impression that he was “ousting” Mulcahy. The party leader said this proved that the dual leadership was preventing Costello from doing things he should have been doing, as well as raising questions about his leadership capacity. “… his line … that he had been holding back in order not to appear to be ousting me … was not at all an explanation of the difficulties that we had been experiencing with him about lack of attention … The principal difficulty [was] … that at no particular point did he show a sustained desire or attempt to wield a sustained influence in pushing ahead any part of the work.”
Costello said he was prepared to assume the leadership of the party. But it wasn’t at all clear to Mulcahy how he intended to mend his ways, although he acknowledged, “The fact that he says that he has been holding back because of my position contains the implication that he is prepared to come very definitely forward.” Crucially, however, Costello said he would have to continue at the Bar for the next couple of years, as “he had very considerable expenditure for particular private and domestic reasons”.
He also appeared to be worried about opposition to him within the party. He believed Liam Cosgrave was annoyed at being transferred from the External Affairs portfolio to Industry and Commerce. Costello said that Industry and Commerce was “a more important position”, but Mulcahy pointed to the lengthy list of legislation which Cosgrave would have to deal with in the Dáil in the coming session. “I suggested that this was a very heavy responsibility that might very well cool the ardour of anybody who had to deal with it.”
Costello also “had certain difficulties in his mind about Sweetman”. Mulcahy replied that Sweetman and Dillon “were the two people who were always there and always ready to step into the breach … The only satisfaction they wanted was to be in the doing of things and to be feeling that they were done purposefully and effectively.” The two men agreed to discuss the leadership with a small group (by inference, the two of them along with Cosgrave, Sweetman and Dillon) which had been set up to examine the recruitment of new party staff.57
Costello talked the situation over with two of his closest confidants, his son Declan and Patrick Lynch. The two younger men independently reached the opinion that Costello could take over the leadership on a part-time basis (this opinion was, according to Lynch, backed by a “similar opinion from Cork”—presumably from Ralph Sutton). Lynch argued that it was “surely wrong and even dangerous to attach decisive importance” to having a full-time leader. He said this was a “pretext”, adding that the parliamentary allowance was so low that the best man could not be attracted “unless he is subsidized by his shop, his farm or his trade union”. In any event, other attributes were more important, particularly “the qualities of judgement, experience and vision to inspire an organisation to follow him … a part-time man with this essential ingredient of leadership is more valuable than a full-time chief who lacks it”. He felt that Costello was in any event qualified by his 11 years as either Taoiseach or leader of the Opposition, which gave him international prestige and a following outside Fine Gael. In a dig at Dillon, closely associated throughout his career with the Ancient Order of Hibernians, Lynch pointed out that Costello had “never been associated with any sectarian organisation … Personally I should be sorry to see the AOH exercise decisive influence in Fine Gael.”58
On Saturday 17 October Mulcahy informed a meeting of the party’s front bench that he intended to retire. Costello said the dual leadership structure should be abandoned; a number of others (Dillon, MacEoin, Mulcahy and Michael Hayes) agreed on a single leader, but insisted that that leader should be full-time.59 Costello had apparently approached Liam Cosgrave about becoming his “managing director” in the Dáil while he became the formal leader.60 Not surprisingly, Cosgrave rejected this suggestion; he also believed a full-time leader was needed. So too did Gerard Sweetman, who also had more personal reasons for opposing Costello, going back to their poor relationship in government. Declan Costello remained of the opinion that his father could contest and win a leadership election. But Jack Costello realised he was not getting the support of the people he needed, that Sweetman was doing his best to ensure that he was removed from control of the party, and that even if he won the vote, his leadership would have been difficult.61 He told his driver he was standing down because “a lot of them don’t want me and I think it’s better to go”.62
Accordingly, in advance of the meeting of the parliamentary party at which Mulcahy was to announce his resignation, Costello wrote to him setting out his views. He repeated his belief that it was “wrong in principle” to insist on a full-time leader. His own circumstances were such that he could not give up his practice. In order to avoid any misunderstanding that might arise from their joint resignation he had offered to take on the leadership part-time, with other front bench members taking up some of his functions. However, “some of our colleagues were clearly of opinion that a whole-time Leader was essential”. Therefore, he had come to the conclusion “that I should not embarrass the Party in their choice”; he would stand down as leader of the Opposition, would not be a candidate for the leadership, and would occupy “the dignified, if unaccustomed, position of a back-bencher”. He sought and received Mulcahy’s agreement that he need not attend the meeting at which this letter was read out.63
The following day, James Dillon was elected leader of Fine Gael in a contest with Liam Cosgrave. An attempt by Michael O’Higgins to persuade Costello to change his mind was headed off by Mulcahy, who said his decision was final (as Costello had said in his letter). According to Dillon’s memoir, he asked Mulcahy to give him the voting figures, and was told he had received 66 votes, against 26 for Costello and six for Cosgrave. As Dillon’s biographer, Maurice Manning, pointed out, these figures couldn’t be correct, as only 57 people were entitled to vote. But they do suggest “that a substantial section of the party stil
l favoured a Costello leadership—even on his own terms”.64
However, that was not to be. The British Embassy reported to London that Costello’s leadership of the Opposition “had proved a disappointment to his party”, and that while there were doubts about Dillon’s ability, “he is certainly a great improvement on Mr Costello” (a judgement based at least in part on lingering resentment at the declaration of the Republic).65 There was considerable surprise that Costello had ruled himself out of the running.66 In Niamh Puirséil’s brilliant, if rather unkind, phrase, he had been “firm … that if there were no fees there would be no foal, so that was that”.67
In public he was dignified, insisting that the decision was his own. But a letter to a priest friend in America showed his real feelings. The recent changes, he said, “were … rather a hurtful shock to me … In my view there had been a conspiracy, with a few only active in it … I felt that I could have defeated it if I wished. After grave consideration and taking the best advice that I could I decided to clear out and abandon a position that would have inevitably brought me great trouble and worry, and would have entailed blaming me if political success were not achieved at the next Election. I did not want to cause a split … The timing and the manner of procedure were hurtful to me, but I tried, not always with success, to take it as God meant it to be taken by me … My personal relations with James Dillon continue friendly.”68
An indication of this friendly relationship was Dillon’s request for policy suggestions for his speech to his first Ard Fheis as Fine Gael leader. The former Taoiseach replied with a typically blunt assessment. He acknowledged that their ideas on policy formulation were rather different; Costello preferred to have a wider group than the front bench or even the parliamentary party involved, and suggested that every idea, even “cranky” ones, should be considered; he also suggested that expert advice should be sought from economists, as “politicians are not expert in the complicated problems that fall to be solved” (this of course was his own practice, when he relied heavily on Patrick Lynch and Alexis FitzGerald). He said the pursuit of an overall majority for Fine Gael was “illusory, will not be successful, may do damage and cause such disappointment as to break the spirit of Fine Gael supporters”. He added that while it was understandable that those depending on the votes of farmers might be apprehensive of anti-Labour feeling among them, scorning Labour preferences would prevent Fine Gael gains.
The only hope for Fine Gael, he argued, was to attract the young people, and to avoid at all costs the label of “Conservatism or Toryism”. He then went on to outline a relatively radical position. “I appreciate that the use of the word ‘progressive’ is rather futile and that Fine Gael, any more indeed than the country, can never become a purely Socialist Party, but there is a danger that it may be, or appear to be, something like a fading aspidistra in a Victorian drawing-room.” As an alternative, he suggested “at least a hint of travelling some direction along the line of vocationalism”, as well as “a scheme … by which the workers could be given some share and interest in the business”.
International isolation, he suggested, was a major cause of Ireland’s economic failure, and he viewed Frank Aiken’s policy at the UN as “the traditional Fianna Fáil policy of isolationism”. The alternative, of securing the friendship of traditional friends, particularly the United States, would make Ireland more attractive for investment, and would not “necessarily, or inevitably, lead to joining such an organisation as NATO”. On the North, he urged an approach to the British to pressurise the Northern Government to remove discrimination against Nationalists. “They should be forced to abandon the scheme of gerrymandering, to restore voting by proportional representation, and to take every step to give the Catholic minority their just rights.” This would allow the government in Dublin to tackle the IRA with public support. “I had intended to take these steps had the Government not been changed in 1957.” (This indicates that he was, as suggested in Chapter 13, interested in pursuing reform within Northern Ireland, rather than concentrating on partition.)
He harped once again on his old theme of developing culture and the arts. “If we could secure the manufacture of objects of art or goods with a distinctive design, devoid of leprechauns, shamrocks and shillelaghs, we might create a magnificent market.” The former Taoiseach also suggested that an Irish television service was inevitable. “If we are not to have rubbish for our eyes as well as for our ears it is essential that our own musicians, artists and craftsmen should be encouraged, and others made welcome.” And he called for an end to live horse exports, a move resisted by Dillon when he was Minister for Agriculture. “In loyalty to you I laid aside my personal opinion on this matter, and consequently suffered some political disfavour. It is not, however, for that reason that I recommend the adoption of this policy but from firm conviction …”
The most interesting part of the memorandum deals with economic policy. Costello advocated a reduction in the number of departments and ministers to allow for the creation of a Department of Economic Planning. He disapproved of the creation of a Planning Section within the Department of Finance; he felt it should have been set up in the Department of the Taoiseach rather than in Finance, “the traditional role of which is not that of economic planning”.69
Costello’s views on economics, and particularly on getting control of planning away from the “dead hand” of Finance, were very much in line with the ideas his son Declan was pushing within the parliamentary party. They may not have been viewed as particularly helpful by James Dillon. And of course, it was much easier to advance such ideas from the backbenches than as leader—as Costello himself had found. But he continued to float what were, in Fine Gael terms, fairly radical ideas, suggesting in May 1961 that “there will be a break-up of the old political position here in the next ten years”. He said it would no longer be enough to shout for one of the two big parties, or “Up Dev”. In fact, he thought, the “left wings of Fianna Fáil and Fine Gael might unite with Labour” to form an alternative to the existing parties.70
Once he resigned as leader of the Opposition, he clearly wasn’t going to be Taoiseach again, so arrangements were made to have his official portrait painted. A portrait of each former holder of the office is hung in Leinster House, in what is known as the Taoiseach’s Landing, above the main stairs up to the Dáil chamber. To paint his portrait, he chose Seán O’Sullivan, a talented if somewhat wayward artist with an alcohol problem. Costello took the precaution of interviewing him in his studio, reporting to Finance Minister Jim Ryan that he “looked in good form and his Studio was in good shape, having all the appearance of work and attention”.71 The portrait was duly completed, but by convention not hung until the subject retired from the Dáil. It was to be another nine years before O’Sullivan’s portrait of Jack Costello would join those of his predecessors. In fact, he served as a backbencher longer than any other former head of government. W.T. Cosgrave remained in the Dáil for a similar period after he left office—12 years—but most of that time was spent as leader of the Opposition.
As a backbencher, he often made the point that he was speaking for himself, not for his party. He was badly caught out during a debate on the 1967 Finance Bill when he criticised a provision which, as Finance Minister Charles Haughey pointed out, had actually been proposed by Fine Gael. Costello rather weakly replied that he knew of no party decision on the issue. “I am criticising this Bill and, if the Minister can answer my criticism, let him answer it by reasoned argument. It is no argument to say that somebody’s spokesman said this, that or the other, and it shows that the Minister is in a parlous position indeed when that is the only thing he can say.”72 Ministers also criticised his Dáil attendance record. Under attack from Costello, Neil Blaney waspishly advised him not to get so worked up “for the little while he appears in the House”.73
The law continued to conflict at times with politics. During a by-election campaign in Sligo-Leitrim in February 1961 he was asked by loc
al TD Mary Reynolds to speak at a meeting but had to refuse as he had a consultation on the Monday, two “very important cases in Court on Tuesday”, and then had to go to Cork on the Thursday.74 In March 1960, he was lobbied by a number of Pioneer Associations to oppose extended pub opening hours. He told one correspondent that he too opposed the new hours, but “as the vote took place last Thursday at an hour when I had to be in Court I was unable to be present”.75
When the new Minister for Justice, Charles Haughey, brought in legislation in 1962 to further reform opening times, Costello again opposed extended hours, though he insisted he was “not a killjoy or anything in the nature of a puritan in these matters”. His view was that the shorter the hours, the better. “Anybody who has had experience of the evil effects … of late night drinking in public houses cannot but feel appalled at the notion of giving any additional scope for those very terrible evils.” However, as he acknowledged during the debate, in his legal practice he frequently applied for licences on behalf of clients. Later, in a Budget debate, he welcomed increased taxation on alcohol, though he added that he was not “in any way a confirmed pussyfoot or, I hope, intolerant in the matter of intoxicating drink”.76
His busy legal career thrived. Costello was particularly proud of his role in the Educational Company case, which outlawed picketing to enforce a “closed shop”. While unions were outraged by the decision, Costello regarded it as an extension of personal rights, as well as showing that the Constitution had some real vitality.77 The case arose from a dispute involving the Irish Union of Distributive Workers and Clerks, which picketed the premises of the Educational Company after its 16 members there voted not to work with nine employees who had refused to join the union.78 The union claimed this was a trade dispute, and the picketing was therefore legal under union legislation dating from 1906. Costello denied this, saying it was “fundamentally … an effort of this particular trade union to organise its workers in the plaintiffs’ employment”. The Educational Company, he pointed out, had no dispute with anybody, and had a right to carry on its business without being picketed, unless there was some legal justification for it. Describing the union’s action as “ruthless”, he said the 1906 Trade Union Act must be interpreted in the light of the Constitution.79
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