The Reluctant Taoiseach

by David McCullagh

  He described the Offences Against the State Act as the “lineal successor to Article 2A. It is an improved copy of Article 2A, with the holes in Article 2A more or less stopped.” But he made the point that Article 2A had only been brought in as a last resort, to meet a breakdown in the administration of justice, and he vigorously objected to the use of such powers to deal with lesser difficulties.66 Following a judicial declaration that Part VI of the Offences Against the State Act was unconstitutional, the Dáil was recalled at the start of 1940 to deal with amending legislation. The Government wanted to allow for the internment of Irish citizens, the power left out of the original legislation because of objections from Costello and others. Now he repeated his arguments, saying that Fine Gael stood for two things—the maintenance of law and order, and the guarantee of constitutional rights to citizens. Costello said he didn’t think legislation introduced to deal with an emergency created by a war outside the State was the place to deal with a domestic problem (i.e. the IRA).67

  Costello continued to play a prominent role within Fine Gael, being elected by the National Executive as one of the 18 members of the party’s Standing Committee.68 He was in demand as a speaker, and his contributions were extensively covered in the media—the Irish Times reported his contribution to a party meeting in December 1941 more prominently than those of McGilligan and Mulcahy. He used this speech, at the Mansion House in Dublin, to point out that while Fine Gael had been criticised for not forming a National Government, they hadn’t actually been invited to form one. And, while they were supporting the Government on defence, the party “had not sold its independence of thought”.69

  During the war years, he continued to speak on a wide range of issues. In 1940, he objected to a proposal to restrict the tax advantages of covenants, arguing that it would deprive charities like the St Vincent de Paul of much needed income, and referring to his personal interest in one of the Society’s conferences.70 He also objected to the level of income tax (which was 6/6 in the pound or 33 per cent), claiming that it was the result of Government extravagance over the previous eight years rather than being due to the war. He put forward the novel argument that high taxation caused unemployment, because “each individual has to do without one particular workman or one particular servant or perhaps, two more that they might keep on if the income-tax was not so high”.71

  Restrictions on the petrol ration following the sinking of a number of tankers on their way to Irish ports led Costello to deliver an impassioned speech on behalf of the private motorist. He argued there were “huge numbers” of people dependent on the motor trade—mechanics, petrol retailers, car distributors, chauffeurs, insurance clerks, and so on. “The owner of the private motor car should be given great consideration and not thrown on the scrap-heap in this fashion. It is on the private motor car that many men and women depend for their business or trade.” Costello was critical of the Government for not foreseeing that ships were liable to be sunk in the middle of a war and laying in extra emergency supplies.72 His call for more petrol was both unrealistic and unreasonable in the circumstances—though no doubt popular with his constituents.

  Costello returned to a related subject later in the war, when a number of doctors had their petrol ration reduced after being accused of trying to get official approval to use their cars to go to a golf course. He told the Dáil that they had never asked the Department of Supplies for permission to use their cars to go golfing—it appeared someone had made the request without their permission. Costello took particular exception to the fact that the story was given to the newspapers, despite the doctors having made it clear that they had not made the application. “There was never in the history of bureaucracy … such an impudent performance, such an irresponsible performance, as the publication yesterday in the Press of this lie about these six professional gentlemen …” According to Lemass, the doctors involved were members of Portmarnock Golf Club—and the request concerned whether one of them could take a car to the club at the weekend so that any emergency calls could be answered immediately.73

  This was not at all unreasonable, because the journey to and from Portmarnock was something of a marathon during the war. For Costello it meant a walk down Herbert Park to catch a tram to Nelson’s Pillar, then a walk down Amiens Street to board a train to Portmarnock, before taking a 20-minute ride in a horse-drawn victoria to the club. And, of course, the journey would have to be repeated in reverse in the evening.74 Obviously, doctors trying to answer an emergency call would be in serious difficulty if they had to rely on such arrangements. Lemass agreed to restore their petrol ration, though warning that it was up to those receiving a ration not to abuse it, while his Department would withdraw the privilege if there was “any possibility” of it being abused.75

  Quite apart from the principle of State interference, Costello had an obvious personal interest in defending the reputations of fellow members of Portmarnock. He also had a professional interest in the survival of private motoring. As he observed during a discussion of legal costs (he insisted the costs were largely for expert witnesses rather than “the legal gentlemen involved”), the curtailment of private motoring was causing a fall in personal injury cases, which he described as a “lucrative source of revenue for the members of my profession. At all events, let us hope there will be still some cases drifting into court and let us hope that the war will be over very shortly and that we will have our motor cars again on the road.”76

  Jack Costello retained an interest in wider issues of legal reform, having the reputation of being “the keenest law reformer in the Library”.77 In June 1941, he and Dillon introduced a proposed amendment to the Constitution to safeguard the independence of the judiciary.78 They proposed a Supreme Court investigation into complaints against a judge before a vote was taken in the Oireachtas, as well as increasing the threshold for removal from a simple to a two-thirds majority in both houses. During the second stage debate, Costello made the rather startling admission that “I do not like the machinery that I have provided in my own Bill, but I had to provide something, merely for the purpose of initiating a discussion with a view to seeing if anybody could suggest a different or better machinery …” But his point was that the existing system meant “there is nothing necessary to secure the removal of a judge but a vote of the Oireachtas, and if the Government recommends that a judge should be removed, that recommendation must be accepted by both Houses, otherwise the Government would have to fall …”79 De Valera said he didn’t think the change was necessary, and it was duly defeated. Costello’s fears of an overbearing legislature sacking judges proved unfounded. But the point he raised about how complaints against judges would be investigated was prescient—and still hasn’t been resolved.

  The other legal reform promoted by Costello, this time in conjunction with McGilligan, related to the more technical area of tort reform. Though the Bill was published in June 1941, it wasn’t discussed in the Dáil until November. Costello explained that his aim was not simply to secure some (much-needed) reforms, but “to direct attention to the fact that there is quite a large body of our law at the moment badly in need of reform”.80 He gave as an example the absence of a law allowing for legal adoption.81 Justice Minister Gerry Boland welcomed the raising of the issues involved, though he thought the middle of the Emergency was perhaps not the best time for such legislation. Still, he agreed to have the matters raised in Costello’s Bill examined in his Department and to introduce his own legislation.82 Nearly six years later, Costello was told the legislation had been drawn up, but the whole subject was to be referred to a new Law Reform Committee—as soon as it was set up.83 He complained that “we neither have a law reform committee nor is my Bill to be brought in … I was given what I thought was a promise by the Minister that the Bill would be introduced.”84 In office, he was able to have the Tortfeasors Act passed into law in 1951, as well as encouraging the establishment of a Law Reform and Consolidation section within the Attorney General’s
Office.85

  But that was the future—during the war, he was in Opposition, and continuing a dogged campaign against the abuse of special powers. In July 1941, when a Bill to continue emergency powers came before the Dáil, Costello sought an assurance from Government that they would only use the powers for the purposes mentioned in the legislation—to secure public safety, maintain public order, and provide and control supplies and services. He pointed out that it was difficult to see how an Order freezing the Civil Service bonus could come under any of these categories. He also said the Dáil could have debated the measures contained in Emergency Orders, rather than have the House sit only a couple of days a fortnight. “It would be far better for public opinion, and for the security of the State, if the people had the safety valve of the Dáil and the Seanad, the Oireachtas as a whole, for the expression of their views in connection with the matters that were dealt with in these Orders …”86

  In January 1942, Labour introduced a Dáil motion to annul one of those Emergency Powers, No. 139 of 1941. As well as allowing unsigned statements to be admitted as evidence before the tribunal, it effectively put the onus of proof on the accused. As Costello pointed out, this meant that if someone was accused of murder or treason “if he does not prove that negative, without a single tittle of evidence being adduced on behalf of the person prosecuting him, he can be condemned to death and suffer death”. The former Attorney General expressed some sympathy with Gardaí who believed people to be guilty of certain crimes but were unable to prove it. He said the provisions of the Emergency Order would be a dangerous temptation to them: “I fear the police official who is out to get a conviction … There are many of them who will extract a statement at all costs … But, in connection with these provisions, the man I fear most is the conscientious, truthful, efficient, zealous police officer who will convince himself on hearsay evidence that a person is guilty of a crime, and who will go all out … to secure a conviction …”87 Costello was one of 20 TDS who supported the Labour attempt to have the Order rescinded, along with other prominent Fine Gael figures like McGilligan, O’Higgins and FitzGerald-Kenny. The party had allowed a free vote on the Order, and Cosgrave, Mulcahy and Dillon were among those who voted with the Government, who secured 71 votes.88 Dillon left Fine Gael the following month, February 1942, because of his opposition to neutrality.

  Fine Gael believed the 1942 School Attendance Bill to be unconstitutional. Costello prepared a lengthy opinion on the matter, going through the various arguments against and for it, and possible answers to the points likely to be raised by the Government. The Fine Gael criticism was that the Bill gave ultimate authority to decide on a child’s education to the Minister rather than the parent, which appeared to be repugnant to Article 42 of the Constitution. The argument was set out in a letter to President Hyde requesting him to refer the Bill to the Supreme Court to test its constitutionality.89 When he did so, Costello was the leading counsel arguing against the Bill.90 The court found section 4 of the Bill unconstitutional, effectively killing it—proving that the new Constitution had its advantages for an Opposition with no hope of defeating legislation in the Dáil.91

  Costello could have been forgiven for approaching the 1943 election with reasonable confidence. The Government was unpopular in the midst of wartime shortages, and Costello was a prominent member of the opposition, who had played a leading role in raising many of the issues of concern to his constituents, particularly (though not exclusively) the middle-class ones. His prominence was rewarded with extensive coverage in the newspapers—his opening and closing election speeches received front-page attention in the Irish Times, for instance. The opening address, in Leinster Square in Rathmines, made the case for “a National Government, representative of, and acting for, all sections of the community”. He said no other party in the Dáil made such an offer to the people (which raised the question of how a national government was to be formed). He also claimed that Fine Gael had a constructive policy for national recovery, with increased employment, lower taxation, and a return to prosperity led by agriculture. He said nobody was challenging neutrality—an indication of the popularity of that policy—which had been made possible by the efforts of the Cosgrave government at Imperial Conferences and in Geneva.92 His closing speech again stressed the virtues of a national government, and said unless Ireland had “prudent leaders capable of effectually participating” in post-war negotiations, she would become “the Cinderella of the nations”.93

  Before the campaign began, Costello’s solicitor friend John Burke, a Fianna Fáil supporter, wrote to Seán MacEntee expressing his view that there was no chance of a second seat for the party in Dublin Townships. “I believe that if Dev and yourself were to go forward only one would get the quota. Benson will get the Protestant vote, you will get the weight of the Party backing and Jack Costello the balance. Jack gets a big personal vote and you must agree the Dáil would be very much the poorer were he not returned.”94 If the acerbic MacEntee responded to this last point, it has unfortunately not been preserved.

  In any case, he was probably too busy engaging in Red-baiting against a resurgent Labour Party to bother about the effect on the Dáil of Costello’s absence. So vociferous were his attacks that Lemass wrote asking him to tone them down, arguing that they were helping rather than hurting Labour. He concluded laconically, “I hope it won’t cramp your style.” MacEntee responded in wounded tones, observing that “elections are not won by billing and cooing at your opponents”. He agreed to bear in mind the concerns that had been raised, but rejected the assertion that his constituency was so different to that of Lemass. “There is almost as large a proportion of working class voters in it as in the other city areas and the vast majority of our workers are of course working class people. They are not of the same mind as your workers in regard to this matter.”95

  The result in Dublin Townships was a triumph for Fianna Fáil, and more particularly for MacEntee, and a personal disappointment for Costello. The Fianna Fáil vote was actually marginally down from the 1938 election, from 47.7 to 46.2 per cent, but the Fine Gael share of the vote was down by 10 per cent, from 52.5 to 42.6 per cent. The difference was caused by the two Labour candidates, who between them took just over 11 per cent of the vote. Costello was clearly hurt more than the other candidates by the Labour intervention—his share of the vote, at 19.45 per cent, was the lowest he ever got in the constituency, and he lost his seat to the second Fianna Fáil candidate, Bernard Butler. Fine Gael activists believed Costello’s shock defeat was the result of the alphabetical ordering of the names of the two candidates in all the election literature, which put Ernest Benson ahead of him. This order was reversed on party propaganda in the next election.96

  If MacEntee expected praise for the result, which after all had deprived the main Opposition party of one of its most effective Dáil performers, he was in for a disappointment. De Valera criticised him at Cabinet for his anti-Labour diatribes, which were blamed for the loss of a number of Fianna Fáil seats. This led to the inevitable letter of resignation, in which he claimed that while “the campaign in Dublin Townships was by no means the only one which Fianna Fáil fought successfully, it was the only one in which to the general public at least the success was unmistakeable. It is usual to censure men for losing elections, but not for winning them.” He said the improvement in the party’s position in Townships had been due to his vigorous defence of Government policy against Labour attack in the working-class areas. “If the candidates in Roscommon had gone to the same trouble and pains as I did to make the case for the Government’s policy, the Labour votes in that constituency might have been held for the Government as they were in the working class districts of Dublin Townships … I thought I had succeeded, but apparently it would have been better to have lost than won.”97 Not for the first or last time, he was prevailed upon to withdraw his resignation, but the dispute must have soured the taste of victory. (MacEntee was a serial resigner; at a later stage, he even th
reatened to resign while in opposition, from the “Committee of the Party”, in protest at what he regarded as the failure of the Irish Press to adequately support the efforts of Fianna Fáil in the Dáil and the country.98)

  Costello, of course, was not the only leading Fine Gael figure to lose his seat—Richard Mulcahy was also defeated, in Dublin North-East. At the first parliamentary party meeting following the election, W.T. Cosgrave noted that Fianna Fáil had only 67 seats, compared to a combined total of 71 for the Opposition. There was criticism from Wexford TD Sir John Esmonde of contacts with other Opposition parties about the election of a Taoiseach. Cosgrave said there hadn’t been any negotiations, only informal contacts, and that any agreement would have to come back to the parliamentary party for final decision.99 Whatever discussions there were came to nothing, and de Valera was re-elected Taoiseach as head of another minority government.