The Reluctant Taoiseach

by David McCullagh

  He argued that it would be “in the teeth” of Article 40 of the Constitution for a group of people to be able to order other people to join a union, and say, “if you do not, we will force your employers to dismiss you”. Citizens had a right to form associations, but unions didn’t have a right to force people to join them. The Constitution, he said, guaranteed the citizen’s personal rights, one of which was to dispose of his labour as he wished and not as he was dictated to by another individual or group of individuals.80 In December 1961, the case finally came to a conclusion in the Supreme Court, and the judges agreed with John A. Costello. Union leaders claimed the decision threw unions back 60 years.81 Costello dismissed this claim, saying the outcome of the case would be good for the unions and good for the country. “I cannot concede that it is necessary for trade unionism and its development that they should be in a position to want to achieve what they regard as justice by committing an injustice.”82

  Those who worked on cases with Costello remember his clarity of mind and expression, his directness, and “his total lack of any semblance of superiority which during his time some of his senior colleagues seemed to exude”.83 This last quality was demonstrated in the late 1950s or early 1960s. Tom Finlay was assisting him on a case, briefed by Alexis FitzGerald, and a complicated and esoteric point of law came up. Finlay told Alexis he didn’t know anything about it, and while he could go and look up the references, he quite understood if he wanted to brief something else. Don’t worry, came the reply—Mr Costello says he’ll do it. And sure enough, the former Taoiseach very quickly produced “a document of precision [and] correctness … he was interested in it, so he said he might as well do it”.84 No matter how eminent a barrister he was, he remembered the key to success—good preparation. He told his driver that winning a case depended on reading a brief properly—the barrister must know all the little details that are likely to come up.85

  A solicitor who briefed John A. Costello in the late 1960s and early 1970s recalls that once he accepted a brief, “he presented his client’s case fearlessly, with vigour and clarity”. In later years he also benefited from the respect of judges, all invariably much younger than himself, who allowed him more latitude than most.86 Two future chief justices, Tom Finlay and Ronan Keane, who knew Costello at this time, agreed that he was brilliant in front of a jury, especially in personal injury cases, which became much more common in the 1950s and 1960s. Costello almost invariably appeared for the plaintiff in these cases. They also agreed that while he loved being in front of a jury, he refused to get involved in bargaining to settle a case. Costello had the attitude that he was paid to fight cases, not settle them. If bargaining in the Round Hall of the Four Courts had to be done, the other senior counsel in the case would generally do it.87 This frequently resulted in Costello being left in the courtroom while the talks took place, grumbling to himself that he couldn’t see why the case shouldn’t go on.88

  One case which he did settle involved a well-known businessman who sued a trade association for libel after it circulated a negative credit reference on him. The businessman believed the source of the incorrect information was a neighbour who held a grudge against him; but the trade association refused to divulge its source. Costello advised that an application should be made to the Master of the High Court for an order allowing them to seek the information from the association. During the course of his argument, he asked a rhetorical question about how the association came to such a poor opinion of his client. “Did it look into its own corporate heart?” This reference to de Valera’s famous remark brought a smile to the face of the Master (appointed to the office under an Inter-party Government), who granted the order. The association immediately settled to avoid the embarrassment of having to disclose its source.89

  While much of his work concentrated on personal injury and motoring cases, he did take on at least one murder case as a favour to a solicitor friend. He was very pleased with himself when he succeeded in getting the charge reduced to manslaughter—until his client’s mother started remonstrating with him for not getting her son off altogether. As he ruefully observed to his driver, “She is his mother, what else would she say?”90

  He continued to travel to Cork, staying with Eavan and Ralph Sutton at their home in Sunday’s Well. The Sutton children eagerly looked forward to the arrival of their grandfather, who would always bring a bag of lollipops for them.91 Once, Isabelle Sutton, aged around four, asked what would happen if she planted one of the lollipop sticks in the ground; her grandfather told her to plant one and see. “The next morning I came rushing down, and lo and behold there was a lollipop tree growing in the garden! A tree had been literally covered in lollipops … He had a wonderful way with children.”92

  Ralph Sutton took silk in March 196893 and the family subsequently moved to Dublin. After that, Sutton and his father-in-law would travel together to Cork and stay with Ralph’s mother, Una Sutton, when the High Court was there.94 As its longest-serving member, he was Father of the Munster Bar, and presided at the biannual dinners which were held on the Monday evening of the Assize week in Cork. All members were expected to attend, and a good excuse was required if the dinner was missed. Costello would speak after dinner—sometimes to admonish his brethren. For instance, he disapproved of the practice where the junior counsel in a High Court case might absent himself to appear in the Circuit Court. Costello took the view that if the client was being charged for the presence of a junior, the junior should be there.95

  At the end of September 1960, Costello was the Fine Gael nominee to join Ceann Comhairle Patrick Hogan and Fianna Fáil TDS Philip Brady and Lionel Booth on a 10-day parliamentary delegation to Germany. He found the trip enjoyable and “highly informative … on the international situation”.96 They met Chancellor Konrad Adenauer, who “looked bronzed and extraordinarily well, and with no apparent signs of his age”—he was then 84.97 During a visit to the Bundestag, Costello noted that deputies were required to “clock in” each morning or pay a fine (half a century later, a similar system was introduced in the Dáil).

  The TDS were treated extremely well by their hosts, not having to pay for anything. They were put up in what Costello described as “top-grade hotels”, chauffeured around in Mercedes-Benz cars, with all expenses paid. Their entertainment included dinner in the Weinhaus Bruchenkeller in Frankfurt, where “somewhat embarrassingly the Orchestra surrounded our table and then ‘discoursed’ ‘When Irish Eyes are Smiling’ and ‘Danny Boy’”. They also attended the Opera in Berlin—Richard Strauss’s Der Rosenkavalier, which Costello judged to be “magnificently produced and conducted”, although he admitted it was not one that appealed to him.

  While the visit may have seemed “rather of the nature of a joy ride”, Costello concluded that there was a serious point to it, and the point was made in the city of Berlin. “I have formed the opinion that the real purpose of the invitation … was to bring home to us, and through us to the Irish Parliament, the real significance of the City of Berlin in international affairs.” While the building of the Berlin Wall would not begin until August of the following year, the emigration which precipitated that move was continuing. The Irish delegation was taken to a refugee camp where they were told that about 500 people a day were crossing the Border. They also met the Mayor of West Berlin, Willy Brandt, who according to Costello “would fill the cast of a ruthless gangster in an American film. This is not to take away in any way from his impressive appearance or his obviously dynamic personality.” He was impressed, too, by Brandt’s passionate commitment to the survival of West Berlin, which he believed was “essential to Western freedom”.

  But perhaps the highlight of their trip was a visit to East Berlin, where the staunchly anti-communist Costello had a glimpse behind the Iron Curtain. Like most visitors, he was struck by the contrast between the bustling West and the drab East of the city. With few people about and even fewer cars, he observed that East Berlin “presented to me the appearance of an Iris
h country town on a Sunday morning”. The monument to Russian soldiers killed in the war was “rather striking”, but the park in which it was placed was “cold and forbidding”. However, as if to prove that human nature did not change, whatever the political system, their return across the Border was speeded up because “our young lady interpreter had given what is known as ‘the glad eye’ to a young Communist Policeman. She told us that she thought that was the easiest way to get through.”

  Costello’s first election as a backbencher was in 1961. Perhaps because of his lower public profile, perhaps because of an attempt to split the vote with his running mate, Senator John O’Donovan, he lost his accustomed place at the head of the poll to MacEntee, who won 29 per cent of the first-preference vote, to Costello’s 25.6 per cent. Noël Browne, running as an Independent, comfortably took the third seat.98 It was, Costello later observed, “the most civilised election that has taken place in this country since the State was established … There was absent … the political excitement so beloved of political commentators …” Costello took exception to suggestions in the newspapers that the result—a minority Fianna Fáil government—was a bad one. He argued that the previous government, with its large majority, had been overbearing and arrogant. “It was practically impossible to convince certain of the Ministers … that the proposals they had put forward to the Dáil were capable of amendment. The Dáil was regarded as a machine merely for registering the decisions of the Government.” Now was the time, he suggested, for the Government to engage constructively with the Opposition.99

  He was himself constructively involved in a number of measures in the justice area. In 1961, he congratulated the Parliamentary Secretary to the Minister for Justice, Charles Haughey, on the Civil Liability Bill, which he said would benefit both the legal profession and the public at large, and on the Defamation Bill, to which he gave his “complete approval”.100 He was more critical of the Succession Bill, introduced by Justice Minister Brian Lenihan in 1964, which was designed to ensure that spouses were not left out of wills. While Costello was supportive of the aim, he warned that the people were not ready for such a drastic move. “They have had this system by which they could leave their property or their money, big or small, to anybody they liked, for well over a century … there is a big task in front of him to educate the people and to make them see.”101 When the Bill was reintroduced after the 1965 election, Costello played a key role in the committee stage, where the detail of the legislation was thrashed out and changed quite substantially. Lenihan accepted many of Costello’s suggestions—at one point Michael O’Higgins, the Fine Gael spokesman, observed that he was sorry he hadn’t had his assistance earlier when dealing with another section.102 His influence on the legislation was widely recognised.103

  The Government also sought his legal expertise to help with the review of the Constitution. He accepted an invitation to become a member of a group of legal experts chaired by the Attorney General which was to support the work of an all-party committee on the Constitution.104 He was in distinguished company, joining Supreme Court judges Brian Walsh and John Kenny, leading barristers Niall McCarthy, Anthony Hederman, Liam Hamilton, and Donal Barrington, as well as John Kelly, law professor and future Attorney General.105

  In 1964, Costello gave legal advice to Jack McQuillan, a TD who had at times been a thorn in his side. Despite this history, Costello refused to charge a fee for his advice, a decision for which McQuillan was grateful. “Your extremely generous action … [was] something I didn’t expect or deserve … I want to say how deeply I appreciate what you have done both by giving so much of your very valuable time and attention to the preparation and conduct of my case and now by letting me off so lightly in the matter of costs.”106 However, while he won his libel case against the Roscommon Herald, it was a pyrrhic victory; he was awarded derisory damages, and the case was a contributory factor in his defeat in the 1965 election.107

  In the Dáil, Costello spoke most years on the Budget, the estimate for the Department of the Taoiseach, and the estimate for the Arts Council. In discussing the latter, he stressed the practical economic benefits that could be gained through improved industrial design.108 He frequently spoke of the need to abolish death duties, and in favour of some tax relief for the self-employed, those like himself who “get no allowance, as industrialists do, for depreciation in plant and machinery. His plant and machinery are his own physical capacity, brains and skill.”109

  Some developments didn’t meet with his approval; he complained of “the era of the expense account … the era of the expensive restaurant … of the motorcar of a particular type as the status symbol”.110 He produced an example in 1965 of an “expense account” lunch in a city restaurant for four people which came to £27 (the equivalent in 2010 of €556).111 “That was paid for by me and by the rest of us here in taxation and by the poor people when they buy cigarettes and drink.”112 He also stoutly defended the record of his two governments. Responding to criticism from Brian Lenihan, he said he would “allow nobody to say that either I or anybody concerned in Government with me was a reactionary”. Costello added acidly that when it came to criticising the Inter-party Governments, “neither truth nor Christian charity has any place”.113

  Jack Costello remained on the progressive wing of Fine Gael. He always had a horror of the party being labelled “Tory”, and did all he could to encourage progressive elements. The chief of those progressive elements in the mid 1960s was his son Declan, who was becoming increasingly frustrated at the party’s conservatism. Declan considered leaving and joining Labour. However, fellow TD Michael O’Higgins suggested that rather than walking away, he should put his ideas before colleagues to give them a chance to accept or reject them. Declan Costello believed his father may have been behind the approach from O’Higgins;114 curiously, Jack Costello apparently didn’t discuss it directly with his son.

  In any event, Declan Costello wrote to each member of the parliamentary party outlining his views, which he acknowledged were “not shared by the majority of my colleagues on the Front Bench”. He asked colleagues for “a decision as to whether or not they are acceptable to the Party and, if necessary, I will ask that a formal vote be taken”. He believed his ideas were not just right for the country, but would “have a dramatically favourable effect on the Party’s fortunes”. The principles were: full scale economic planning; targets for the private and public sectors; a Minister for Economic Affairs; government control of the credit policies of the banks; direct government investment in industry; increased social capital investment; direct rather than indirect taxation; and full and effective price control.115

  His proposals—the foundation of the Just Society policy programme—were strongly supported by his father, and were endorsed by the parliamentary party (despite initial opposition from Gerard Sweetman). Jack Costello told his Garda driver he was delighted the policy had been accepted, adding that if it had been rejected “he would nearly have felt he would have to resign” from Fine Gael.116 Political scientist Peter Mair has seen in the Just Society programme “a major watershed in the general political approach” of Fine Gael, and in particular a break with the policies put forward by Costello senior.117 That was not how Jack Costello saw it; he later claimed to have had “quite a number of embryonic ideals which were not precisely articulated and they conform very much to those of the Just Society”.118 At his retirement dinner, he said he left the Dáil “satisfied that the Fine Gael party were on the right lines and walking in the right direction when they walked under the banner of the Just Society”.119

  The 1965 general election was the last to be contested by both Costello and Seán MacEntee, who between them had dominated the constituency of Dublin South-East since its creation. Costello ran a reasonably high profile campaign, with ads in the Irish Times and Irish Independent, 500 posters, 300 window stickers, and no fewer than 41,000 leaflets, at a cost of almost £300. Among the contributors to his campaign were his former Cabi
net colleague Dan Morrissey, who gave the largest donation of £25, while smaller contributions were received from businessmen and legal colleagues. The balance was paid by Costello himself.120 The result was reasonably satisfactory—Costello regained his place on top of the poll, with 28 per cent of the first-preference vote, 242 ahead of MacEntee. But Fianna Fáil’s Seán Moore took the third seat from Noël Browne, running for Labour. The second Fine Gael candidate, James O’Connor, brought up the rear with less than 5 per cent of the vote.

  As the 1966 presidential election approached, Fine Gael was casting about for a candidate. After two unsuccessful runs for the Áras, and now retired, Seán MacEoin had ruled himself out. Deputy leader Tom O’Higgins believed a contest was necessary to avoid a revolt among party members. He didn’t think James Dillon would be suitable, and quickly found that Seán MacBride would be utterly unacceptable to his colleagues; he finally settled on Jack Costello. “He was highly respected in the party and throughout the country and, as the leader of two Inter-party Governments, would attract considerable support from other parties.” Of course, he might be difficult to persuade, but O’Higgins decided to float the idea at a front bench meeting.