The Reluctant Taoiseach

by David McCullagh

  Costello took exception to the provisions surrounding the Government too. He strongly supported the idea of collective responsibility (an idea that would be severely tested in his own first government), saying a minister must abide by the majority decision in Cabinet “irrespective of his own particular views before the decision was come to”. He objected to the provision that the Taoiseach could demand a Minister’s resignation, saying this meant they “hold office at the will and pleasure of the Prime Minister”.32 He believed this would make the Taoiseach too powerful. In Costello’s view, the holder of that office might be first among equals, but he should not dictate to the other members of the Cabinet. It was a view he would put into practice when he himself became Taoiseach 11 years later.

  Ironically, given their later positions on the abolition of proportional representation, Costello urged de Valera not to specify in the Constitution the form of PR to be used. He said it should be left open, as it had been in the Free State constitution, rather than opting to “pin our faith” to the single transferable vote. STV would eventually lead, he argued, to a large number of small parties, leading to “instability in government”. But de Valera warned that a simple commitment to PR could be abused by finding an electoral system which was ostensibly proportional but which was very far from being so in practice.33

  Costello also made an effort to put protection for transferred civil servants into the Constitution, arguing that such a provision would prevent any future legislature repealing the 1929 Civil Service (Transferred Officers) Compensation Act, which he had drawn up as a solution to the Wigg-Cochrane case. He argued that he was not seeking a privileged position for these officers, but merely a position of safety. He pointed out that if the transferred officers hadn’t had a guarantee in the Free State Constitution, the Wigg-Cochrane case would not have been won. His proposal was strongly supported by Bill Norton, but de Valera was not disposed to give way. He pointed out that Costello had a special interest in the issue, and it would be unfair if other groups of people did not have their rights enshrined in the Constitution because they didn’t have a similar advocate in the Dáil. De Valera acknowledged that he might be hard to convince. Costello said it wasn’t hard to convince him—it was impossible.34

  In fact, he had secured some concessions—copper-fastening the rights of women and securing Ireland as the official name of the state, as well as certain minor changes to other articles. In the main, though, de Valera proved obdurate on matters of substance. However, Costello looked on the bright side, saying there were advantages to the Government ignoring the advice of the lawyers on the other side of the House. “If this Constitution is persisted in, as it stands at the moment, we who expect to be making our living for some years at the Irish Bar can look forward to making a rich harvest …”35

  But before he could concentrate on reaping his expected rich harvest, he had to face a general election. He fought the 1937 general election in a new constituency, Dublin Townships—effectively the constituency later called Dublin South-East. It was a three-seater, and in 1937 Seán MacEntee topped the poll, being elected on the first count with 27.4 per cent of the vote. Fine Gael won just over 45 per cent of the vote, which was perfectly split between Costello and his running mate, Ernest Benson, ensuring that both were elected—Costello was ahead by just 105 votes.

  Dublin South-East produced many prominent politicians over the years—apart from Costello and MacEntee, they included Noël Browne, Garret FitzGerald, Ruairí Quinn, Michael McDowell and John Gormley. Quinn reported the comment of one woman talking to a Labour Party activist: “Oh, we don’t elect TDS here, we elect Ministers.”36 The constituency had—and has—the image of being very well-heeled. There was much talk during Garret FitzGerald’s time as Taoiseach of the “Dublin 4 set”, for instance. But it also had—and has—areas of significant social deprivation. In 1939, Costello told the Dáil that he spoke “as the representative of a … constituency with poor people, with people on the border-line of poverty, with people on the borderline of comfort, and with very few rich people”.37 Costello spent a good deal of time dealing with constituents seeking housing, which he described as “one of the most disheartening and heart-breaking tasks” he faced.38 On another occasion, he observed, “I hear stories that would wring the heart of a stone—and I can do nothing.”39 This was to continue even while he was Taoiseach.

  The first contest in Dublin Townships in 1937 was marked by controversy involving Seán MacEntee—not for the last time. According to figures supplied to the returning officer, he and his running mate, Bernard Butler, spent £1,210 on their campaign, compared to the £106 reported by Costello and Benson.40 After being challenged about these figures by Gerry Boland, the Minister for Lands and Honorary Secretary of Fianna Fáil, MacEntee defensively replied that around £500 was spent on newspaper advertising, “mainly to make good the weakness of the Headquarters effort in that regard”. He claimed that this expenditure helped the party in areas outside the constituency. Another £34 was spent delivering copies of the election bulletin to 13,000 houses, and of the Constitution to 3,500 houses. £100 was spent on letters to constituents, £73 on a constituency headquarters and a number of committee rooms, £22 on loudspeakers, £46 on bands, £91 on printing, £50 on “signs, streamers, flags, etc.”. It was an astonishing amount of money in the context of the times, covered by a direct personal appeal for support which raised £1,115 and £100 from Fianna Fáil headquarters. But MacEntee argued it was justifiable due to the nature of the constituency, which was “an overwhelmingly middle-class, residential district, the residents of which do not come to public meetings”.41

  Perhaps MacEntee did need to spend this amount to get his message across, but he got a poor return for the investment. Not only did Fianna Fáil win only one of the three seats on offer, Dublin Townships also returned the highest No vote in the country in the Referendum on the Constitution. 59 per cent of valid votes in the constituency were cast against the Constitution. The only other constituencies to vote No were Cork West (55.5 per cent against), Wicklow (51.7 per cent) and Dublin County (51.7 per cent).42 However, nationally, the Constitution was accepted by 56.5 per cent of voters, on a very high turnout of almost 76 per cent.

  The general election left de Valera in a minority, but he managed to return to government. The new Dáil had to deal with a number of matters arising from the Constitution, including arrangements for electing the new Seanad. Costello was scathing about the proposals, pointing out that there was no basis on which to establish a functional or vocational upper house. There was no equivalent of the corporative system in Italy, nor was one likely to develop. “There is no use trying to set up machinery for something which has no proper foundation.” He rightly observed that no matter how good a candidate was, he would not be elected without party political support.43 How, he asked, was a Seanad with “specialised knowledge, independence of thought and action” to emerge when the electorate was made up of politicians, including councillors? He also warned of the danger of political corruption, of councillors “being subject to corrupt pressure, of being asked to vote for a particular person for a monetary consideration, because that is going to happen, and we had better face it”.44 This was a prescient observation—ironically, in 1945 Costello would himself be on the legal team of John Corr, who was convicted of bribing councillors to influence their Seanad votes.45

  In a speech to a Fine Gael meeting in Dublin in December 1937, Costello claimed that the “so-called economic war has steadily poisoned the life stream of our body politic”, and that “there can be no relief until that absurd conflict is put an end to”. That much may have been true—but he also predicted that the Government, “under their present leadership at all events” would not have the courage to make an honourable and advantageous peace.46 In fact, that was exactly what de Valera was working on, and in April 1938 he reached agreement on ending the economic war, as well as securing the return of the Treaty ports. It was a diplomatic trium
ph which he rightly recognised would be extremely popular with the electorate, if he could only find an excuse for appealing to them again. Luckily for him, just such an excuse was to be supplied by John A. Costello.

  In March, Costello moved a private members’ motion in the Dáil calling on the Government to establish arbitration for disputes on pay and conditions in the Civil Service. As he admitted when moving the motion, the subject had been before the House on several occasions already, and the arguments were predictable. He pointed out that arbitration machinery was already working well in Britain, and so “we are not taking any leap in the dark” with the proposals.47 The Government claimed that binding arbitration would impinge on the Government’s control of the public finances. When the debate finally wound up with a vote in May, Costello said it was clear that any scheme of arbitration would be “subject to the paramount right of control in the Dáil”.48 Then, to everyone’s surprise, the Government was defeated in the vote, by 52 to 51. The result was greeted with cheers from Opposition TDS, who suggested it was time for the Government to resign. The Taoiseach was not present, having gone to Limerick for the funeral of his uncle, Patrick Coll.49

  The Government spent two days considering its options after the first Dáil defeat under the new Constitution. These were broadly four—accept the vote and introduce arbitration; ignore the decision of the Dáil altogether; put down a motion of confidence to clarify if it still commanded a majority in the Dáil; or call an election. Given the favourable political situation, the last option was an attractive one to de Valera, so while his decision appeared to surprise observers, it shouldn’t have. The decision to call an election was made at a Cabinet meeting on the morning of 27 May, and announced late that night. The Taoiseach said a Government with a precarious parliamentary majority “cannot do the nation’s work as it should be done”, and that it had to be able “to refuse sectional demands which it considers not to be in the general interest”.50

  MacEntee attacked his constituency rival with relish, telling voters that the election had been precipitated by Costello, claiming the issue was not arbitration, but the demand that “it should be applied without any safeguard for the taxpayer”.51 In fact, Costello’s motion had specified that the Government’s acceptance of any arbitration awards would be “subject to the overriding authority of the Oireachtas”52, but that mattered little in the context of a heated election campaign. He later complained that his rival had gone round the constituency “raising the hair on the heads of the taxpayers about the amount of money and taxes” arbitration would cost.53 MacEntee increased his share of the vote to just under 31 per cent, while the Fine Gael share also rose—but Benson benefited more than Costello, and was elected on the first count along with MacEntee. Though well ahead of the second Fianna Fáil candidate and elected comfortably, Costello was almost one thousand votes behind his running mate. He later claimed that the fall in his vote was due to attacks on his position on arbitration. “Every effort was made to deprive me of my seat … because of the stand I took on behalf of civil servants.”54 But the figures were an indication that despite his high profile in the Dáil, he could take nothing for granted if there was slippage in the Fine Gael vote.

  Costello continued to mix politics and the law, notably in arguing cases before the Civil Service Compensation Board, the body set up under the 1929 Act to hear compensation claims from transferred civil servants. The most significant case was that of Peter Hegarty of the Department of Local Government. In a decision delivered in August 1938, the tribunal agreed that, as a transferred civil servant, he was entitled to compensation because his position had been changed by the new Constitution—in effect, it held that he had been discharged from the service of the Free State because the Constitution had come into force.55 As Costello noted with some glee, he had been in the position of arguing that “a great change had taken place by virtue of the Constitution, and the Minister’s advisers were forced to make the case … that really no change had taken place at all … the Minister will forgive me if I got a certain amount of amusement out of the Hegarty case …”56

  With an estimated nine thousand civil servants who had transferred from the British to the Free State still working for the Government, the possibility of many more such claims was clearly a live one.57 Legislation was introduced in October to clarify that anyone deemed to have been discharged from the Free State civil service on the coming into force of the new Constitution was deemed to have been immediately reemployed, on the same terms and conditions, in the service of the Government of Ireland.58 Costello argued during the debate on the Bill that only around 40 civil servants had lodged claims based on the Hegarty decision, and that the Government was not faced with a “very serious financial embarrassment”.59 The Government wisely ignored this point of view and closed the loophole.

  Another case involved a client who sued for libel after being referred to as a “hangman judge”. Costello met one of the character witnesses, civil servant Leon Ó Broin, on the way into court, and asked him if he remembered Hempenstall, “a figure from the ’98 period who had the ugly reputation of being judge, jury, hangman and all. I did, and when I was in the witness box Costello exploited that piece of Irish history to secure judgment and £3,000 for his client.”60

  Far more serious matters were on the horizon, though. In July 1938, with the Sudeten crisis brewing on the Continent, the Dáil discussed the Army Estimate. Costello made the point that Ireland would be attacked if it suited some big nation to do so—no matter what constitutional provisions or type of sovereignty she had. He also, equally realistically, pointed out that Ireland did not have the resources to pay for an adequate defence against these big nations. However, thanks to geography, it was in British interests to defend Ireland. He correctly foresaw that Ireland would supply food to a Britain at war, but wrongly believed this would make neutrality impossible as Irish ships and harbours would be attacked. The logic of his argument was that “we are going to be attacked if it suits another country to attack us … we cannot afford to equip ourselves for modern warfare, and that therefore we shall have to depend on some nation which has a common defence policy with us to assist us”. Specifically, he suggested Ireland should co-operate with “the other nations of the Commonwealth”. Defence Minister Frank Aiken dismissed the suggestion of a defence agreement with Britain while Partition lasted.61

  It may seem odd that at this late stage Costello still regarded Ireland as a member of the Commonwealth—but such she still was, despite de Valera’s refusal to have anything at all to do with the machinery of the Commonwealth. Even the decision to remain neutral in the Second World War did not imply a final break with Dominion status, according to the distinguished scholar Nicholas Mansergh. He pointed out that South Africa only decided by a narrow vote in Parliament to enter the war, making abundantly clear that “the decision between peace and war rested with each dominion Parliament. If Éire be regarded as a dominion, there was no difference in principle between a South African Parliament deciding by a small majority against neutrality and the Dáil deciding virtually unanimously in favour of it.”62

  Neutrality, however, was not the policy of the IRA, which launched a bombing campaign against Britain early in 1939. De Valera’s response was to introduce two pieces of legislation—a Treason Bill, which prescribed the death penalty; and the Offences Against the State Bill, which provided for the reintroduction of the military tribunal and internment without trial. All these powers were to be extensively used during the Second World War. Fine Gael reluctantly offered to support the legislation, subject to certain safeguards. Costello acknowledged that the Offences Against the State Bill was “practically verbatim copied” from legislation introduced between 1922 and 1932, especially Article 2A. But he wanted some sections removed from the Bill.63 He objected to provisions putting the onus of proof on those accused of having illegal documents in their possession, and giving the State power to suppress an organisation—he claimed this was to
o drastic a provision to be included in ordinary law, and cited his own party’s experience of having an organisation banned. He also insisted that there should be a right of appeal from the special tribunal to the Court of Criminal Appeal—saying that “if, God forbid, I had anything to do with anything like Article 2A again, I would certainly wish to have, from the point of view of any person prosecuting or defending before a special tribunal” such a right of appeal.64 His amendment was accepted, and the right of appeal from the tribunal established in law.

  On Saturday 2 September 1939, the day after the German invasion of Poland and the day before Britain and France declared war, the Oireachtas was recalled to pass two measures. The first was a constitutional amendment to give the Oireachtas power to declare that a state of emergency existed (to avoid the possibility that the courts would hold that emergency powers could only be used when the State was actually involved in a conflict). The second was a comprehensive Emergency Powers Bill. It was so comprehensive, in fact, that Costello claimed it caused him “profound shock”. However, given the circumstances, Fine Gael was prepared to give the Government the powers it sought—on certain conditions. In particular, Costello was worried about the powers of delegation in the Bill, which would allow the Government to confer powers on various people without further consultation with the Oireachtas. “To me, with my legal experience and legal instincts, they are very objectionable indeed.” He argued that the powers of censorship should be “exercised with the utmost tact and with the greatest possible leniency towards newspapers”; that the power of control over persons entering or leaving the State, or of moving freely about the State, should not apply to Irish citizens; and that the Government should use Orders under the legislation “as sparingly as possible and to allow no element of bureaucracy to enter into the administration of the measure”65—a theme he was to return to repeatedly during the war years.