The South African Prime Minister, General Hertzog, believed the forthcoming Conference should, and would, confirm the right of Dominions to secede from the Commonwealth. He regarded such confirmation as a test of constitutional liberty—if the Dominions truly were free, they should be free to leave the Commonwealth. Joe Walshe believed such a declaration would be “the logical result of all that the Irish Free State has been urging” in relation to the Commonwealth. He also suggested that such a declaration “would enable the Irish Free State to get out of Articles 1 and 2 of the Treaty without laying herself open to the charge of having broken them”. Article 1 gave the Free State the same constitutional status in the Commonwealth as the other Dominions, while Article 2 stipulated that it would have the same relationship to the Crown as Canada. However, Walshe went on to point out that even if Ireland was able to “get out” of the first two articles in this way, it wasn’t clear whether the rest of the Treaty—for instance Article 7 on defence—would stand.115
The Conference opened on 1 October 1930, with British Prime Minister Ramsay MacDonald in the Chair. In his opening statement, McGilligan once again stressed the importance of constitutional issues. “For us the recognition of our position as a free and sovereign State comes before all other considerations … While certain elements of the old system of Imperial control were maintained, even though it was only in form, the will to co-operate was correspondingly weakened … I should not be frank with you if at this juncture I did not definitely place before you in what seems to my Government to be the proper perspective the considerations which should govern the proceedings of this Conference.”116
Abolition of appeals to the Privy Council was to prove one of the most contentious of these items. McGilligan was ingenious in his arguments, suggesting that retention of the appeal helped opponents of the Treaty, negated the 1926 declaration of autonomy, and did nothing to help Southern loyalists. The latter, he argued, had eight years’ experience of the Free State, and “have suffered no indignities and no injustice”.117 In response, the British claimed that Article 2 of the Treaty, which said the Free State’s relationship to the Crown would be the same as that of Canada, meant that it would be the same as Canada’s had been in 1921.118 In other words, any advances secured by the Canadians after that date would not apply to the Irish.
It is difficult to believe the British actually meant this seriously, particularly as the Lord Chancellor, John Sankey, had the previous year delivered a landmark Privy Council decision in a Canadian case which established the “living tree doctrine”. This holds that a constitution is organic and must be read in a broad and liberal manner so as to adapt it to changing times.119 The British were attempting to establish one law for the Canadian goose, and another for the Irish gander. Costello was well aware that this trick had been tried before—the previous year, he had sought the advice of Chief Justice Hugh Kennedy on a number of matters raised at the Gwyer Committee. Kennedy had advised him that during the discussions in London on the draft Free State Constitution in May and June 1922, the British tried “to pin us to the old out of date Canadian text … the result of our stand of Michael Collins’ ‘quality’ was a complete climb down on their part and a … full admission of our right to the benefit of every constitutional advance made by Canada …” He added that the British also tried unsuccessfully to include in the Free State Constitution “the now purely technical limitations on the amendment of the Canadian constitution”—another issue that would be raised again in 1930.120
Costello accompanied McGilligan to a meeting of Heads of Delegations on 6 October, at which British Attorney General Sir William Jowitt argued that the Treaty meant the Irish were in a different situation to the other Dominions. “The matter was therefore one of contract, part of a bargain then entered into. He could not see how a contract could be derogatory to status …” McGilligan pointed out that even if the Privy Council appeal was in the Treaty (which he didn’t accept), it could be abolished in the same way as reservation was going to be abolished. Thomas rejected this view. If that was their position, Costello asked, why had the British not objected to the Irish Land Act of 1926 (which, as we have seen, circumvented a Privy Council decision) as also being contrary to the Treaty? Thomas weakly replied that the lack of protest didn’t mean they acquiesced in either the Land Act or in legislation to remove the appeal.121
Other matters, meanwhile, had been referred to a committee under Sankey—advice to the King, the appointment of Governors General, and the issue of diplomatic documents.122 As Desmond FitzGerald observed, “practically all the substantial points” were referred to it. “It is called a legal committee, no doubts because most of its members will not be lawyers.”123 In fact the initial name, the “Politico-Legal Committee”, was changed to the more descriptive “Committee on Certain Aspects of Inter-Imperial Relations”.124 While McGilligan made most of the running on this committee as well as in the Conference, Costello played a useful supporting role. On the question of treaties, he attacked the existing practice, claiming it implied that the Commonwealth was “contracting as one party irrespective of the autonomy of the separate members of the Commonwealth … unless and until that implication was definitely put on one side there would always be the liability of friction in the future”.125 When the protection of minority rights was raised as a reason for retaining the Privy Council appeal, Costello told Sankey that no-one in Ireland made that argument; it was only put forward in England.126
The Irish were less than impressed with the performance of the British. Desmond FitzGerald complained that MacDonald and Thomas “were badly briefed … with myself and P. McG. [McGilligan] acting as technical advisers to the whole lot”.127 On another occasion, he observed, they “had (or pretended to have) the wrong end of the stick. I told them that I had dealt with the matter in 26 and what the circumstances were. MacDonald said I was wrong and proceeded to prove it by reading from the report—and landed on a sentence that proved what I said. That sort of thing happens constantly—and makes them irritable …”128 They took a particularly dim view of Jimmy Thomas, who was “legendary for his tactlessness, his indiscretion, his volatility and his bright, breezy vulgarity. He was also notorious for newspaper leaks, drinking, gambling and snobbery. In a prim, staid government where these qualities were in short supply, Thomas stood out, beloved by many (including the King) and loathed by others, including most of the dominion prime ministers.”129 After one conversation with the Dominions Secretary, FitzGerald reported he “heard more blasphemy and general bad language than for a long time. ‘Bloody’ was general …”130 Thomas was incredibly tactless; Irish diplomat Freddie Boland recorded that he went up to Sir Samuel Hoare at a garden party in Buckingham Palace and asking him how “Lady W” was. The response, if any, was sadly not recorded.131
As well as the conference work, there was the usual round of social engagements, including a dinner at Buckingham Palace. Having recovered from the “bad shock” of a missing pair of breeches (which were found),132 FitzGerald reported that the Irish delegation “ostentatiously fasted … as we felt that it was bad form for them to have had it on a Friday”. The fasting was purely for effect—they ordered up tea and rolls as soon as they got back to their hotel.133 There were less formal pursuits too, including ice-skating, where FitzGerald amused himself by talking to a young woman. “Of course the others were all tickled. I should have preferred if she had been better looking and more amusing—brighter. But we got on terms that nearly produced her life history …”134 It is highly unlikely that John A. Costello spent his time chatting up young women—in any case, his wife joined him for at least part of the time in London. With a characteristic mixture of elitism and self-satisfaction, FitzGerald wrote home after a conversation with her, “Mrs Costello a bit of a bore—but I get on all right I think …”135
As October drew to a close, Sankey prepared a draft report, to which the Irish vehemently objected. They rejected the suggestion that international convention
s would not apply between members of the Commonwealth (unless they specifically agreed that they should apply), feeling it implied that the Commonwealth was “a single sovereign State”.136 But the most serious issue was nationality, which Costello later said “caused more bitterness between this country and the British Government … than any topic discussed from 1926 to 1930”.137 McGilligan told a meeting of heads of delegations that Sankey’s suggested formula was “politically impossible”. The Lord Chancellor had proposed the wording “Every national of the Irish Free State is hereby declared to possess the common status of a subject of His Majesty by virtue of the allegiance which he owes to His Majesty as a national of the Irish Free State.” The Irish were seeking a recognition that Irish nationality sprang from its own nationhood, but that it could be reconciled with common status under the Commonwealth. The British took a strong line against the Irish, with MacDonald accusing them of proposing to “sweep away the basis on which the common status rested … if it became non-existent for one, it would become non-existent for all”.138
Frustrated at the failure to deal with the Privy Council question, McGilligan and FitzGerald went to MacDonald to insist that it be raised, “as it was a matter of vital importance”.139 But at the following day’s meeting of heads of delegations, MacDonald requested a postponement so that he could gauge opinion in the House of Commons. He observed that two of the key participants in the 1926 conference were now dead (i.e. O’Higgins and Birkenhead), and he asked McGilligan “to give him a statement which would strengthen his hand when he saw the leaders of the Opposition”.140 McGilligan duly wrote a letter, explaining that the Irish agreed not to pursue the Privy Council matter in 1926, after Birkenhead “urged strongly that we should not then press it to a conclusion, as he had already taken great political risks through the support he had given us and as a certain section of his party were filled with distrust of our every action … If Mr O’Higgins would agree to that, he, Lord Birkenhead, would promise him the full weight of his support when the matter was brought up at the next Imperial Conference.”141
The principals were dead, but there were two other witnesses who attended the breakfast meeting in Birkenhead’s house. They were the English and Irish Attorneys General at the time, Sir Douglas Hogg and John A. Costello. The latter, of course, was still in office and at the 1930 Conference; the former, now Lord Hailsham, was in opposition. The Irish were convinced—correctly, it would appear—that MacDonald, Sankey and Thomas were “in constant consultation” with Hailsham. MacDonald even passed a note to McGilligan suggesting that Hailsham should be invited to join the discussion in Downing Street so that he could state what had taken place in 1926. The Irish Minister, believing the Conservative was being invited “for the purpose of arguing Article 2 of the Treaty against the Irish Free State delegates”, rejected the suggestion.142
MacDonald reported the following day that he had met Baldwin and Hailsham, who insisted that the Free State had given guarantees to Britain about the rights of the minority, including the right to appeal to the Privy Council against a decision of the Irish courts. The Prime Minister said the Opposition would oppose the Statute of Westminster on the grounds that it would allow the Free State to abolish the appeal without agreement. McGilligan replied angrily that it was “monstrous” to suggest abolition of the appeal would break the Treaty. Sankey said nobody wanted to go back on what had been agreed in 1926, but equality of status did not entitle the Free State to break the Treaty. McGilligan pointed out that the cases so far referred to the Judicial Committee had nothing to do with southern Loyalists—one involved a Swedish paper company, another unemployment insurance (see Chapter 3). He said, “the acid test of the sincerity of the 1926 declarations was the question of appeals … If they had not the freedom which had been given to all the rest, the consequences were going to be very serious.”143
FitzGerald described the meeting as “appalling. Massed British guns directed on us … Faced with dishonesty, treachery and cowardice.” The one bright spot was the support of Australia’s Scullin and Hertzog of South Africa. “Thomas completely dishonest and treacherous. Ramsay contemptible … Tody [McGilligan] told off old Sankey so much in the morning that he did not appear in the afternoon. Probably told that his presence might annoy us.”144 Even more likely to annoy the Irish delegates was the Lord Chancellor’s attempt to outflank them with an indirect approach to Cosgrave. At the opening of Parliament on 28 October he had met Lord Granard (who, as we saw in Chapter 3, was a member of the Irish Senate as well as the House of Lords) and asked him to convey a proposal to the President.145 Sankey suggested that the Irish introduce legislation to abolish the appeal, “on the understanding that the British Government would not take any steps to oppose it”. Cosgrave sent Michael McDunphy, the Assistant Secretary to the Executive Council, to London to confer with the delegation, who viewed the move as “a dishonest attempt to sidetrack the official delegation”. McGilligan felt the Government would be bound to bring in legislation after the Conference, “irrespective of what action the British Government were disposed to take in the matter”.146 Cosgrave duly informed Granard that “he was very reluctant to interfere with Mr McGilligan, and that, if he did interfere, it would only be to stiffen the hands of the latter, that members of the Council at home held very strong views”.147
Diarmuid O’Hegarty, in London with the delegation, evidently held very strong views too. He urged “an extremely stiff front … Sankey is entirely untrustworthy.” He added that the argument that the Treaty was “static” was “the most serious breach of faith with which we have yet been faced”.148 In Dublin, meanwhile, an aeroplane was put on standby in case of the need for “urgent personal contact with the delegation”149—a fairly dramatic move in the context of the times. In a letter to Granard, which he presumably expected to be passed on to the British, Cosgrave expressed his “amazement that Lord Hailsham’s recollection of the meeting does not appear to coincide either with what Mr O’Higgins told me at the time or with the present recollection of our Attorney General … I begin to see now what was in Mr O’Higgins’ mind when he used the phrase—‘I wonder will they keep their promise’.”150 This remark had been made to Costello a few days before O’Higgins left the 1927 Naval Conference in Geneva, shortly before his death.151
The performance of the Labour Government was quite extraordinary. As Costello was to point out later, the Irish got more help from “the representatives of a Conservative Canadian Government … in striking contrast to the conservative attitude of the British Labour administration”.152 Sankey’s attempt to outflank the Irish delegation in particular was badly judged, ill-timed and counterproductive, and left the British on the defensive. At a meeting of heads of delegation on 13 November, FitzGerald pointed out that the Treaty had been accepted on the basis of statements by Lloyd George that their status was not static. “If these statements were not made in good faith, the whole basis was altered and the Irish Free State was not a member of the British Commonwealth.” Costello chipped in the observation that in 1926 the Colonial Laws Validity Act was still in force, and that the whole situation had now been altered in this respect. When Scullin of Australia asked if the repeal of the Validity Act would give the Free State the same rights as Canada, Jowitt said it would, “so far as legal rights were concerned, but there were also what might, for want of a better word, be called ‘moral’ rights”.153 In his concluding speech to the final meeting of the Conference the following day, McGilligan was distinctly frosty, saying it would take time for the results of their work to be seen, and it was only as they saw those results that they could decide whether Irish willingness to co-operate would increase or not.154
As we have seen in the previous chapter, Costello was asked early in 1931 to draft a Bill to abolish the right to appeal, but the legislation was not actually introduced until after the change of government. However, despite the failure to make progress on the Privy Council and related issues, the 1930 Imperial Conference d
id endorse the Statute of Westminster and the British agreed to put it through Parliament. They even agreed to McGilligan’s request that the date for it to come into operation should be 1 December 1931. This was to allow the Irish Government to introduce the Merchant Shipping Bill and get it into committee before Christmas of 1931. McGilligan believed this would be “very important to them from a political point of view, having regard to the coming General Election”.155
By the time the Statute came before the British Parliament, there had been huge changes in the British political scene. After the Labour Cabinet split over spending cuts in the midst of the Depression, MacDonald formed a National Government in August 1931, which won a massive election victory that October. Ironically, from the Irish point of view, the three British politicians they trusted least, MacDonald, Thomas and Sankey, retained their respective positions as Prime Minister, Dominions Secretary and Lord Chancellor. The Government had a huge majority, but was vulnerable to pressure from Conservative backbenchers, many of them deeply unhappy with the idea of loosening the bonds of empire. The Statute prohibited the parliaments in Australia, New Zealand and Canada from amending their respective constitutions. During the second reading in November 1931, Winston Churchill signalled an amendment which would add a prohibition on altering the Irish Free State Constitution. So far, so predictable. But in reply, Thomas said that “every consideration will be given … to all that has been said here today, and … the Government will be asked to consider the whole situation in the light of the Debate that has taken place”.156
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