The Reluctant Taoiseach

by David McCullagh

  When Costello took office as Attorney General he was faced with the fallout from these two cases. The Privy Council’s decision in Lynham v. Butler was dealt with easily enough through the 1926 Land Act, passed into law on 11 March, which clarified the anomaly at issue and backdated it.85 Costello explained to Justice Minister Kevin O’Higgins that such Declaratory Acts were not uncommon, and were used “to set aside what Parliament deems to have been a judicial error, whether in the statement of the Common Law or in the interpretation of a Statute”.86 The British Conservative Lord Cave, no supporter of the Free State, described the procedure as an “effective and ingenious” way of getting round the Privy Council.87 Costello kept an eye on developments in the case through “cautious enquiries”, which indicated that the Privy Council appeal would not now be proceeded with.88 (A third case in which leave to appeal was granted, the Performing Rights Society v. Bray UDC, was also circumvented by introducing legislation, in this case, the Copyright Preservation Act, 1929.89)

  The Wigg and Cochrane case, however, was not so easily disposed of. It proceeded to hearing before the Privy Council, and the Free State lost the case, leading to a position where the civil servants were awarded benefits which the British Government did not grant to its own civil servants. Ernest Blythe, the Minister for Finance, estimated that the extra benefits granted by the Privy Council would cost £55,000 immediately as well as an unquantifiable continuing annual charge. He refused to make any payment to the individuals involved, and he and Costello agreed the form of a despatch to the British Government on the issue.90 Complex negotiations ensued between the Irish and British Governments, and between the Irish Government and the Civil Service unions, led by the General Secretary of the Post Office Workers’ Union, Bill Norton. Working closely together on this issue built up a significant level of trust between Costello and Norton, which would be important in later years. In 1929, agreement was reached on a new tribunal to assess compensation to civil servants. The Irish conceded the better terms, while the British agreed to repay the extra money involved. The settlement, which was embodied in legislation in both jurisdictions, was in effect “the first revision of the hitherto sacrosanct Treaty”.91

  Whatever practical measures might be taken to resolve problems thrown up by particular decisions of the Privy Council, it was clearly impossible to continue in a situation where litigants in seemingly innocuous cases might be granted leave to appeal. There was also the Constitutional principle at stake. British attempts to reform the operation of the Privy Council were opposed by the Free State, on the grounds that such efforts were “likely to make its eventual abolition more difficult”.92 In January 1931, the Executive Council asked Costello to examine the possibility of declaring that decisions of the Supreme Court were final.93 His draft legislation was considered by the Executive Council in March. Costello offered his colleagues two drafts of the Constitution (Amendment No. 17) Bill, 1931, which differed only in their long title. The first described the act as one “making absolute the finality of decisions of the Supreme Court”, while the second was more to the point, saying it would make “the decision of the Supreme Court incapable of review by His Majesty in Council”.94

  Ministers chose the first, more diplomatic, option, but decided to hold the legislation in reserve, as it was “possible that the question with which they are intended to deal may be solved by other means”.95 It appears Patrick McGilligan, the Minister for External Affairs, was hoping to reach agreement with the British on the issue in the context of the Statute of Westminster, which will be discussed in the next chapter. In October it was agreed to defer consideration of the matter for another two months, while in December McGilligan indicated that he didn’t want the subject put back on the agenda of the Executive Council.96 The effect of this, of course, was to leave the matter for the incoming Fianna Fáil government to deal with.

  The second major issue facing Costello as Attorney General was emergency legislation to combat IRA activities. Such measures were introduced three times during his term of office, in 1926, in 1927 (after the assassination of Kevin O’Higgins), and again in 1931. Costello was a most reluctant participant. Many years later, he was to describe himself as being “very tired and sick at heart at all the rows that were going on between Irishmen”, and describing himself as having “the misfortune to have to prepare and … put into practice” these measures.97 Indeed, he claimed this distaste encouraged him to repeal the External Relations Act as a way of “taking the gun out of Irish politics”.98 Ironically, in a tribute after his death, then Taoiseach Liam Cosgrave stated that Costello’s greatest contribution “was in the Constitutional sphere”, citing his work in drafting “many of the original public order acts”99—which perhaps says more about Cosgrave’s order of priorities than it does about Costello’s. Curiously, his role in drawing up emergency legislation was later praised by one of the targets of such laws, Seán MacBride, who believed Costello insisted on their passage “in order to avoid the rule of law from being disregarded completely”.100 In other words, if the Government and the Gardaí were going to break the ordinary law anyway, it was better to suspend the operation of that law rather than ignore it.

  Costello’s first brush with emergency law came in November 1926, following a series of raids on Garda stations which led to the deaths of two Gardaí.101 On 15 November, the Government approved “the immediate introduction” of a Public Safety (Emergency Powers) Bill, 1926, the text of which was approved the following day. The Bill was signed into law just three days later.102 The legislation allowed for the declaration of a state of emergency, which would last for a renewable period of three months, during which persons suspected of committing a scheduled offence could be interned by ministerial order.103 However, the legislation had to be suspended less than a month later, following reports of Garda violence towards detainees in Co. Waterford.104

  Emergency legislation again became necessary following the murder of Kevin O’Higgins, the Minister for Justice and External Affairs, and Vice-President of the Executive Council, on Sunday 10 July 1927. The Government’s response was twofold. It introduced public safety legislation suspending Habeas Corpus, establishing special non-jury courts and reintroducing internment—“essentially a return to the emergency measures of the Civil War”.105 Secondly, it brought in a new law forcing Fianna Fáil TDS to take their seats in the Dáil. Following the election of June 1927, Fianna Fáil TDS had turned up in Leinster House to take their seats, but after telling the Clerk of the Dáil that they would not take the Oath prior to doing so, were removed from the premises by the Captain of the Guard. Two of their number, Seán T. O’Kelly and Seán Lemass, subsequently challenged this action in the High Court, naming as defendants Costello as Attorney General, Ceann Comhairle Michael Hayes, the Clerk of the Dáil and the Captain of the Guard. Costello armed himself with the legal opinion of four eminent counsel—A.K. Overend, W.G. Shannon, Charles Bewley and Cecil Lavery—who were “clearly of opinion that the Plaintiffs were not entitled to attend the meeting of Dáil Éireann so summoned without having first taken … the prescribed oath …”106 Equally eminent counsel—Arthur Meredith, Albert Wood, and George Gavan Duffy—advised Fianna Fáil that “there is no authority in anyone under the Treaty or the Constitution or the Standing Orders of Dáil Éireann to exclude any member of that House (whether he has taken the oath or not) from any part of the House before the House has been duly constituted and the Ceann Comhairle thereof duly elected”.107

  O’Higgins was murdered while this legal action was still pending, so the Executive Council considered ways of forcing the issue. It initially proposed declaring the seats of existing deputies vacant if they failed to take the oath, but following discussion with Labour leader Thomas Johnson it was decided “not to vacate the Irregular Seats, but to make a sworn declaration of intention to comply with Article 17 … a condition precedent to valid nomination for all future elections”.108 This was duly included in the draft legislation forwarded
by Costello the following day, which required candidates to declare their intention of taking the Oath, set down a two-month time limit for them to do so, and provided for the seats to be declared vacant if they didn’t.109 In any event, the outcome was the same—de Valera led his deputies into the Dáil on 12 August, having taken what was now described as an “empty formula”.

  But while the legislation was passed by both Houses of the Oireachtas on 10 August, it wasn’t actually signed into law for another three months. On the sixteenth, Cosgrave was handed a petition, signed by 64 Labour and Fianna Fáil TDS, asking that the Bill be suspended for 90 days under Article 47 of the Constitution. (This could have been avoided if both Houses of the Oireachtas had declared the Bill necessary for the immediate preservation of the public peace, as they had done for the Public Safety Bill.110) The signatures were sent to the Ceann Comhairle to confirm they were accurate,111 while the Attorney General was asked for his opinion as to whether the Governor General should be advised to sign the legislation despite the petition.112

  The Ceann Comhairle confirmed the accuracy of the signatures within two days.113 Extraordinarily, as late as mid-October, the Assistant Secretary to the Government was writing to Costello to enquire if he had come to a conclusion on whether the Bill should be signed.114 Speed may not have appeared that important as Fianna Fáil had already entered the Dáil, but until the legislation was actually signed by the Governor General, there was always the danger that the Opposition would be able to secure enough support to demand a referendum on the issue,115 which makes Costello’s apparent inertia inexplicable. Although the Executive Council had considered removing the Constitutional provision for referendum and initiative after O’Higgins’ assassination,116 they did not do so until the following year.117

  This, along with the decision to apply the requirement to take the oath only on future election candidates rather than unseating those already elected, is another example of a paradox at the heart of the government’s reaction to the assassination of its Vice-President. While portrayed as draconian, the response was in fact far more measured than might have been expected, or than was initially considered. For instance, five days after the murder, the Executive Council decided that rather than immediately suspending trial by jury, legislation should only give it the power to do so by proclamation.118 A further decision three days later referred to “if and when extraordinary tribunals were set up”.119 Clearly, the Government was a lot less hard-line than is usually believed—in fact the power to set up courts martial was not used.120 In November, Cosgrave indicated “in view of the altered circumstances which have arisen since that Act was passed that its duration might reasonably be limited to the 31st December, 1928”.121 The following May, the Minister for Justice, James FitzGerald-Kenny, told Eamon de Valera that while four people had been arrested under its terms, nobody was then detained under the Act, and nobody had ever been convicted under the Act of any offence.122 It was, then, no great surprise when the Act was repealed at the end of 1928—although the repeal caused considerable annoyance to Garda Commissioner Eoin O’Duffy.123

  While de Valera’s decision to take the Oath contributed immeasurably to the long-term stability of the political system, it left Cumann na nGaedheal in a minority in the Dáil. Fianna Fáil agreed to support a Labour minority government in order to get Cosgrave out, in return for a Labour commitment to remove the Oath. This arrangement was later described by Costello as “a conspiracy by the Labour Party”124—a rather strange interpretation of democratic politics, but indicative of the intense suspicion of Fianna Fáil held by the government of the day. The Dáil debated a confidence motion put down by Labour leader Thomas Johnson on 16 August. Another party, the National League, agreed to support the motion, and Cosgrave and his colleagues were suddenly staring defeat in the face.

  But good luck, a malleable Opposition TD and a large amount of alcohol intervened to save the day. The National League’s Alderman John Jinks was waylaid by Bertie Smyllie of the Irish Times, plied with drink, and put on the train home to Sligo. A piece of evidence in Blythe’s papers suggests Costello was aware of, if not involved in, these events. On the back of a card on which is typed “Attorney-General” is a hand-written note (presumably by Costello): “Jinks is gone away. It will be a tie with casting vote.”125 The vote was duly tied at 71 each and the Ceann Comhairle cast his vote for the status quo. Cosgrave then proposed a three-month adjournment, which after some haggling with the Opposition was reduced to two months, and the Dáil adjourned.126

  Which was all well and good until the House resumed in October, and Cosgrave and his ministers would face the same arithmetic, with no guarantee that the disappearance of Jinks or some other deputy would work the next time. And once they lost a vote in the Dáil, they wouldn’t even be able to call an election. Article 53 of the Constitution was very clear: “… the Oireachtas shall not be dissolved on the advice of an Executive Council which has ceased to retain the support of a majority in Dáil Éireann.” But at this point Jack Costello proved worth his legal weight in gold.

  In both August 1923 and May 1927 the Dáil had voted on a dissolution motion before an election took place. The Executive Council believed that it had no right to dissolve the Dáil without the Dáil’s own consent. But, according to Ernest Blythe, Costello pointed out that the wording of the Constitution did in fact allow for a dissolution by the Executive without a vote in the House, and while it wasn’t in session.127 Eleven days after the adjournment, Governor General Tim Healy proclaimed the dissolution of the Dáil, and in the subsequent election Cumann na nGaedheal and Fianna Fáil gained at the expense of the smaller parties (Jinks was among the casualties). With 62 seats and the support of the Farmers, Cosgrave was able to form a stable government.

  When the new Dáil met on 11 October, the decision to call an election without consulting the Dáil was heavily criticised by Labour’s T.J. O’Connell (whose vote could have unseated Cosgrave in August, had he not been absent at a conference in Canada128). O’Connell complained that the government had “used the powers which were given them in the most arbitrary fashion; they have trampled on the Constitution, and they have flouted the wishes, even the decisions, of the Parliament that elected them to power … Why did not the President … get a decision from that authority to have a dissolution and a general election? The President knows well, as everybody knows who sat in the Fifth Dáil, that if such a motion as that was put before the Fifth Dáil it would not have been carried. That is the reason he ignored the authority of the Dáil …”129

  O’Connell was undoubtedly right, and Costello’s advice had proved invaluable to the Government—and was to prove equally valuable to de Valera in 1933, 1938 and 1944. In fact, de Valera widened the power of the Government to call an election at the time of its own choosing in the 1937 Constitution. The 1922 Constitution said a dissolution “shall not” be granted to a government which had lost its Dáil majority; the 1937 version merely gave the President discretion to refuse it. This is one of the few discretionary powers of the Presidency, and one that has never been used, despite the best efforts of Fianna Fáil to persuade President Patrick Hillery to refuse a dissolution to Garret FitzGerald in 1982. There are other options for a government after losing an important vote in the Dáil. For instance, when the Opposition parties defeated Cosgrave on a pensions bill in March 1930, he promptly resigned and successfully asked the Dáil to re-elect him;130 when the First Inter-party Government lost a vote on the Estimates for the Department of Posts and Telegraphs, it simply resubmitted the unchanged Estimate the following day and won a vote. The defeat in the latter case was due to accident rather than an important policy issue—one Government TD had apparently locked himself into the toilet and therefore missed the vote.131

  But to return to 1927, Cosgrave was now back in power, with a secure majority; Fianna Fáil were inside the political system; and the Government, as we have seen above, felt confident enough about the security situation to repe
al the Public Safety Act in December 1928. That confidence was not to last long.

  In January 1929, the foreman of a jury which had convicted an IRA member was shot, though not fatally; the following month Albert Armstrong, who had given evidence against a number of Republicans who tore down a Union Jack, was shot dead.132 Armstrong had been worried about possible repercussions after he gave evidence, and approached Fianna Fáil TD Bob Briscoe, a friend. Briscoe later told Gardaí that Armstrong thought he might be kidnapped, not shot. After making enquiries, the TD told Armstrong that as far as he could judge he was not in any danger.133 The Gardaí shared this assessment, reporting that an earlier assassination attempt had failed “owing to the faintheartedness” of one of the potential assassins.134

  Worse was to follow at the beginning of 1931, with an IRA informer shot dead in January, Garda Superintendent John Curtin murdered in Tipperary in March, and a man who had given evidence against the IRA for Curtin killed three months later.135 These murders were a direct challenge to the justice system, and could not be ignored by the Government. The Curtin assassination has been described by Eunan O’Halpin as “a monumental miscalculation” by the IRA, which was, “as usual … taken aback by the cumulative consequences of its own operations when the government finally acted”.136

  In June 1931, Garda Commissioner Eoin O’Duffy claimed in a report to the Government that the IRA was on the verge of open insurrection—a claim given credence when thousands of Republicans defied the Government’s ban on the annual march to Wolfe Tone’s grave at Bodenstown that month.137 The Executive Council requested a report on the extent of illegal drilling throughout the country.138 The report claimed the IRA consisted of around 1,300 officers and 3,500 rank and file, that the organisation had successfully terrified jurors, and that in areas like Kerry and Tipperary “men are afraid to be seen speaking to the police”.139 O’Duffy added a personal complaint to the Department of Justice, claiming that the IRA and their followers “treat the Gardaí with absolute contempt”. He complained that since the Courts had declared “harassing tactics” illegal, “the Irregulars have the field to themselves”. O’Duffy urged the Government to put those trying to overthrow the Constitution outside the protection of that document. “There is no good reason why an Organisation making war on the State should be afforded the protection which the State affords its loyal citizens …”140