He was to raise many of these issues again in the debates on de Valera’s new Constitution. But before dealing with that, we should return to where this chapter began, with Eoin O’Duffy. The ignominious end to his leadership of Fine Gael had not exhausted his crusading zeal—and the outbreak of the Spanish Civil War gave him just the crusade he needed. While his intervention in Spain turned out to be a bit of a disaster for him, for those who went with him, and indeed for Franco, it was taken seriously enough at the time. When de Valera introduced a Bill to legislate for non-intervention in the Spanish Civil War, Costello claimed it was not designed to honour Ireland’s international obligations, but to prevent O’Duffy bringing recruits to Spain. He added that some of those who went to Spain were strong supporters of Fine Gael, who had no sympathy with communism or fascism, but who “left good jobs for Spain in what they believed to be in the interests of their religion and not in the interest of Fascism”. He pointed out that if the Bill was passed, those who were already in Spain could not come home for a holiday and then return to the fighting. With considerable indignation, he claimed that this provision would even apply to the Catholic chaplain attached to O’Duffy’s brigade.165 Some months later, he expanded on his views, saying that while they didn’t have enough information to form a proper view of the situation in Spain, it was clear that the Spanish government “stands for Communism” and therefore Ireland should not send a representative to it. He also said that they were not opposed to the policy of non-intervention—a statement seized on by de Valera, who observed that Fine Gael’s position hadn’t been so clear initially.166
However, this was the last time O’Duffy would trouble Irish politics. New issues were looming—a new Constitution, a world war, a resurgent IRA—which would challenge the political elite, including John A. Costello.
Chapter 6
NO HOPE WHATEVER
“I know enough constitutional law to know how little constitutional law I know.”1
JOHN A. COSTELLO, 1936
“We had men there who had apparently no future … we had no chance of getting on and no hope whatever.”2
JOHN A. COSTELLO, 1969
John A. Costello was one of the leading contributors to the debate on de Valera’s new Constitution in 1937; he could also claim an indirect role in inspiring that document in the first place. As we saw in the previous chapter, he was severely critical of the proposed abolition of the Seanad in 1934, largely on the basis that it would allow a majority in the Dáil to change the Constitution without any other check. In response, de Valera agreed to examine the Constitution to identify “fundamental Articles dealing with the democratic foundations of the State. I do not mind if these are fixed so that they cannot be changed … without some such provision as a Referendum.”3 The result was the establishment of a constitution committee4—which eventually led to the new Constitution.
The draft Constitution was published at the start of May 1937, and undated notes on Costello’s copy show some of the concerns he would raise in the debates: provisions relating to the Irish language (in the name of the State, and in a proposal that laws could be passed to make the use of either Irish or English exclusive for certain purposes); the powers of the Taoiseach (to fire ministers and to seek a dissolution of the Dáil after losing its support); the method of electing the Seanad; and, above all, the new office of President of Ireland (he noted that proposals to give this official extra powers through legislation were “autocratic”).5 All these matters would be extensively debated, but the issue with which he raised the biggest initial storm was surprising. Costello, the former opponent of female membership of the UCD Literary and Historical Society, now turned into a defender of women’s rights.
Article 3 of the Irish Free State Constitution had stated that citizenship would be enjoyed by every qualified person “without distinction of sex” while Article 14 said the vote would be available to everyone over 21 who complied with electoral laws “without distinction of sex”. It has been convincingly argued by constitutional lawyer Gerard Hogan that this “was not some sort of free-standing equality guarantee” but simply gave women the same citizenship rights as men. As proof, Hogan points out that much discriminatory legislation was passed while the Constitution was in force6—not least the Juries Act of 1927, passed by the Cosgrave Government of which Costello was Attorney General, which exempted women from jury service (although they could apply to serve).
However, the absence of the phrase “without discrimination of sex” in the draft was uneasily noticed by women’s organisations. And in an article in the Irish Independent on 6 May, five days after the draft was published, Costello seized on the omission. He claimed that it affected the status of women “if not expressly, certainly by implication”. Costello then pointed out that in other articles, the State was not to be prevented from having due regard to differences of capacity, physical and moral, and of social functions. He argued that this “allows a wide latitude” to introduce discrimination, adding that it “offers its Framer as a whole burnt offering to feminists and feminist associations”.7 This last phrase, recalling comments by Kevin O’Higgins at the 1926 Imperial Conference (see Chapter 4), caught de Valera’s attention, as he referred to it several times during the Dáil debates.
The President responded to Costello’s article in a speech in Ennis, saying he had deliberately left out the phrase “without distinction of sex”. It had been used in 1922 because women had only just got the vote, and therefore it was “a badge of previous inferiority”. There was no need to include the phrase in the new Constitution, because nobody was challenging their right to equal citizenship.8 Maybe not, but it was arguable that they could—and Costello made that argument enthusiastically.
De Valera told the Dáil that women had equality “right through this document. There is nothing in it to suggest that they cannot vote for and become members of the Dáil, that they cannot vote for and be Senators, or that they cannot vote for and become President.” He added that the mention of women in two Articles was “to give the protection which, I think, is necessary as part of our social programme”.9 He returned to this theme the following day. “My line of approach is not one of prejudice against women or women’s rights. There is no truth whatever in it.” Costello pointed out that Article 16 would enable a government to pass legislation to remove the vote from women. De Valera responded with the not very reassuring observation that the provision “applies to other people as well as women”. He said the provision was there to exclude certain classes of people—those of unsound mind, prisoners, and so on—but conceded, “you may strain that and say that the extraordinary thing could happen, and that half of the electorate was going to be disqualified”.10 But he eventually had to concede the point, and amended his draft to include the words “without distinction of sex” in relation to nationality and citizenship rights in Article 9.1.3.11
Having won this battle, Costello then turned his attention to the other provisions relating specifically to women—Article 40 on Personal Rights, which gave the State the power to take account of “differences of capacity, physical and moral, and of social function” in its laws, and Article 41 on The Family, which spoke about women’s role in the home and said mothers should not be obliged by economic necessity to work outside it. He said the provisions “do not appear to have any really practical value in a constitutional instrument. They are headlines, if you like, statements of general principles, statements of high ideals, to put it at its highest.” He agreed that there was nothing in the Constitution to prevent women getting work equally with men—but, he said, there was nothing to prevent a law being passed which would do so. It was, he said, “an incitement or an invitation to a future Legislature” to pass such a law.12 Costello supported the removal of the phrase “by her life within the home” on the basis that it could be seen as a slight on women working outside the home, and indeed on single women. The promise to ensure that mothers wouldn’t be forced by economic necessit
y to work outside the home was, he argued, unnecessary. The preceding article already committed the Government to support the family—and in any case the article didn’t cover any other reasons why mothers might be forced to work, such as a drunken or lazy husband.13
In his obituary of Costello in January 1976, Irish Times Political Correspondent Michael McInerney wrote of his liberal attitude on some social issues, adding, “it is of interest … that he was one of the very few who opposed the Constitutional ban on divorce in 1937”.14 Such opposition would indeed have been interesting, given Costello’s reputation for loyalty to the Church. But in fact the point he raised—which was accepted by de Valera—related to a foreign registry office wedding that was subsequently dissolved. The case he cited involved a Catholic Irish girl who “married a Scotchman of a different religion in a registry office. Of course, that marriage was not in accordance with the views of the Catholic Church, was invalid and no marriage at all … the marriage was never consummated, because the parties separated at the door of the registry office and never saw each other again. The girl came to Ireland and desired to marry. The case was submitted to me when I was Attorney General with a view to prosecution for bigamy. I need hardly say that I did not prosecute.”15
He argued that the draft ban on the remarriage of people whose marriages had been dissolved under the civil law of any other state would affect such people. “It is no marriage, according to the Catholic Church. It is not a marriage, according to the law, because it has been dissolved in England, and this Article prevents either of the parties getting married here.” De Valera promised to look into the matter, but warned that dealing with all possible exceptions might undermine the purpose of the clause, which was to ensure that a valid marriage would not be dissolved within the State.16 The final article banned remarriage of people who had a dissolution abroad but whose marriage was “a subsisting valid marriage” under Irish law17—a provision that would exclude the registry office wedding.
But most of the debate was devoted to the new office of President of Ireland. Fine Gael “suspected that office might be a vehicle for the establishment of a de Valera dictatorship, either by his becoming President and being voted considerable powers by a compliant government or by installing a ‘yes man’ as president”.18 The former concern was prompted by Article 13.10, which stated that further powers and functions could be conferred on the President by law—the provision beside which Costello had written “autocratic”.
Pointing out that the word “Taoiseach” had been translated on German radio as “Führer”, he claimed that the office of President was a “scheme … for dictatorial powers”, whether it was occupied by de Valera or anyone else. Costello particularly objected to election by popular suffrage, which he believed would make the President “the centre of political activity in the future”, either directing events himself, or through his “yes man”, the Taoiseach. He declared, “I tell the House there is not a greater tyranny than the tyranny which masquerades under the cloak of democracy” (to which MacEntee rather wittily responded, “What about the tyranny that masquerades under a blue shirt?”).19 De Valera later picked up on the comment himself, saying that anybody can say that anything is masquerading. “I could say, for instance, that the lawyers over there who have been talking about this were only masquerading as lawyers and were really politicians.”20
De Valera was to make this suggestion more than once during the debates on the Constitution. He complained that Costello, along with the other lawyers on the Opposition benches, was playing politics rather than giving considered legal opinions. “If I were asking the Deputy’s opinion privately, I would listen to it with the greatest care. I am afraid, however, that when he speaks from the benches opposite, he goes half the way with his argument as a lawyer, and then you can see the turn around.”21 At another stage of the debate, de Valera said that at one time he was “innocent enough” to think that Costello spoke in the Dáil strictly as a lawyer, but that “he has not his wig on here, and therefore I expect that he feels at liberty to make a case that he would not dare to make elsewhere”.22
Costello also made an issue of the separation of powers, claiming to see danger to the independence of the judiciary in Article 37, which allowed non-judges to exercise “limited functions and powers of a judicial nature” in non-criminal matters. This, he claimed, would make civil servants judges and establish “bureaucracy in excelsis”. He also linked the provision with the powers of the presidency, saying it could be used to pass a motion “providing that the President can decide anything he likes except matters of criminal law. He may issue letters of cachet lodging persons in jail without trial and there is nothing in this Constitution to prevent him … This Draft Constitution allows the President to raise taxes on the people, on any and every article, without consideration by the Dáil.”23
However, he appeared to be more fundamentally concerned about the reduction in the jurisdiction of the courts than about possible presidential transgressions. He proposed an amendment which would restrict non-judges to exercising judicial functions in “the exercise of administrative functions”. DeValera promised to have the matter examined.24 The Revenue Commissioners noted that Costello’s proposed amendment would affect a large number of tribunals and commissioners exercising judicial functions not related to administration. In a memorandum sent to de Valera, they claimed that transferring these functions to the courts “would be disastrous from the point of view of the public as well as the State. The legal profession would be the only section of the community which would have reason to welcome such a change.” The Commissioners speculated that Costello’s real aim was the abolition of the Special Commissioners of Income Tax, which had been hearing appeals against tax assessments since 1853. “He has consistently shown hostility to this body … The transfer of their functions to the Courts would mean a very considerable increase in expense to taxpayers, and, owing to the delays and confusion caused, would probably bring about a state of something approaching chaos in the administration of the Income Tax …” The Minister for Finance, Seán MacEntee, suggested to de Valera that when dealing with the issue in the Dáil he should avoid mentioning the legal doubts which existed over the prevailing practice in Government departments, and that if the Opposition raised it, he should point out that nobody had felt confident enough to test the matter in the Courts.25
De Valera gave no ground on this issue, or on the presidency. Costello pointed out that the requirement to consult the Council of State was no check on the President’s powers, claiming that he had devised the phrase “after consultation with” along with Kevin O’Higgins during the drafting of the Court Officers’ Act 1926 “for the purpose of meaning nothing”. He returned to the problem he saw with direct election, complaining that the President “can claim the same authority for his actions, legal or illegal, as the Government of the day can for their actions. The source of both their authorities is the vote of the people.” This, he believed, could lead to conflict between government and president, who could “resort to highfalutin’ talk about his being the guardian of the Constitutional rights and liberties of the people … and the direct appointee of the plain people”.26 One of the amendments proposed by Costello would restrict the President to a single seven-year term on the basis that if he were eligible for re-election, he might direct all his public actions towards that end. In any case, he believed, seven years was too long a term.27
He also wanted to remove the right of an outgoing president to nominate himself, saying he could not see the reason for treating him differently from other candidates. And, despite his suspicion of the new office, he opposed the provision for impeachment, saying it was a holdover from ancient British practice, and that if anyone was ever impeached, “all that will happen is that there will be an awful lot of talk either in the Seanad or in the Dáil, and in the end nothing will happen”. However, he expressed the hope that “Providence and my constituents may spare me to witness this extraordinar
y trial by impeachment of some unfortunate President, as I think it will be a matter of considerable amusement.”28
Costello strenuously objected to what he saw as curtailments of civil rights in the new Constitution. He claimed that the phrase “subject to public order and morality”, which qualified the guarantee of certain rights, was “a grave menace” to freedom, because it gave the Government considerable latitude to define threats to order or morals. He made two suggestions to limit emergency powers, claiming that he would recommend them to any government he was advising—firstly, to allow the courts to certify whether or not there was a state of emergency, and secondly to provide for an appeal from special courts to the Court of Criminal Appeal. He said these safeguards would “go far towards calming the very reasonable fears that special courts would be used for subverting the liberties of the subject”. The irony of such suggestions from a former Attorney General who had helped bring in emergency powers was not lost on de Valera. He pointed out that if Costello were still Attorney General, he would “be the first to enter a caveat” to personal rights in order to see peace and order preserved—an accusation that was not denied.29
In his initial notes on the draft Constitution, Costello described as “a patent absurdity” the provision that the Irish text would prevail if there was a conflict between it and the English version. He wrote that the Irish text was obviously a translation of the English, and that “the draft was conceived in English, will be debated in English, and, at least for many years must be construed by Judges not learned in the intricate idioms of the Irish language”.30 During the Dáil debate, Costello successfully objected to de Valera’s original intention to have the state called “Éire” in both Irish and English texts. He objected to the practice of mixing the two languages in one document (citing the practice of starting a letter “A chara” and finishing it “Mise, le meas”, with the rest written in English). But he said his real reason for putting down the amendment to change the name to Ireland was to do with the State’s international status. “In so far as we are known abroad as a nation internationally, we are known by the use of the word ‘Ireland’. If you put in the word ‘Éire’, then foreigners may think that there is some distinction between the State that we have here and what has been known for centuries as Ireland.” De Valera rather reluctantly accepted the argument, and the amendment.31
The Reluctant Taoiseach Page 20