The Reluctant Taoiseach

by David McCullagh

  It was clear that Cosgrave would not remain leader for long—but his obvious successor, Richard Mulcahy, was now in the Seanad. James Dillon was approached to take on the leadership in the Dáil by McGilligan, but decided after some hesitation that he could not return to the party, whether as leader, deputy leader or front bench member, so long as the European war lasted, “gladly as I would serve in any of these capacities in different circumstances, under Dick Mulcahy’s presidency”. Dillon said he believed Tom O’Higgins must take on the leadership instead.100 Cosgrave announced his resignation on 18 January 1944, telling the parliamentary party that “he found himself not capable of making the physical effort called for in the office of Leader of the Party”. Dr T.F. O’Higgins was elected chairman and leader of the Party in the Dáil, Seán MacEoin having refused nomination.101 Mulcahy was president of the party.

  Dillon’s biographer, Maurice Manning, has pointed out that Dillon could have accepted the offer, as the Treaty ports were no longer an urgent issue, but “he felt that his views, so strongly expressed, were incompatible with leadership of Fine Gael and he could not in honour accept”. Manning goes on to argue that the decision was a costly one. “Had he been party leader or even deputy leader after Mulcahy returned to the front bench it is very likely that he and not Costello would have been the compromise choice as Taoiseach when the first inter-party government was being formed.”102 This was certainly more than possible—after all, Dillon had been to school with Seán MacBride, so he could have had some claim on Clann na Poblachta support. As against that, nobody appears to have considered O’Higgins, who had been leader in the Dáil and deputy leader after Mulcahy’s return, as a possible Taoiseach. Perhaps his family connections, Army service and prominent role in the Blueshirts made him less acceptable than Costello was, or Dillon might have been.

  As leader, Mulcahy adopted a strong pro-Commonwealth position, both at the Fine Gael Ard Fheis in January 1944 and in a speech to the Literary and Historical Society in UCD the following month. He told the students that there should be closer co-operation between Ireland and the other members of the Commonwealth. “At no time have we severed our connection with the Commonwealth.” The Canadian High Commissioner in Dublin noted that this pro-Commonwealth policy was seen by Mulcahy’s friends as “courageous but politically risky”.103 He also took a more proactive approach to party organisation than W.T. Cosgrave had—which was not saying much. Mulcahy travelled the country on an autocycle, a bicycle powered by a small engine, trying to build Fine Gael into an effective fighting force.104 The lack of progress made by the party certainly wasn’t due to lack of effort on the part of its leader.

  The youngest Costello child, John, recalled the war years as a time of “a marvellous traffic free town, a fine public park and excellent swimming in easy cycle distance”. His father’s leisure time was limited, as he worked to midnight every night, but what spare time he had was devoted to his wife (Saturday mornings), his children (Saturday afternoons), and of course golf (Sunday afternoons). He took the children riding at Dudgeon’s stables on the Stillorgan Road (where UCD now stands). The dachshund, Slem, came too, and Jack would walk around “in a state of huge anxiety for the safety of his children, his dog and the horses”. Grace, Eavan and Declan rode—John and Wilfie didn’t enjoy the sport, the latter complaining that it was “like knives going through you”.105 During this period Eavan studied art with the Dublin painter Mainie Jellett. Jack and Ida wanted to support Jellett, and their daughter was very happy learning to paint.106

  The war years also saw change in the Costello household, with the arrival of Ida Costello’s niece, a war orphan. Ida’s brother, Major Victor O’Malley, had died in Aden during service there with the British Army; his wife was killed in one of the early air-raids on London. Their daughter, Mildred Patricia O’Malley (always known in the family as Patricia), then came to live in Herbert Park.107 Patricia, who was only 13 or 14 at the time, had to travel over from wartime London to Dublin on her own, but on arrival became one of the family, going to school at Sacred Heart in Leeson Street, where Grace and Eavan had been, and then to UCD. Her arrival must have added to the financial burdens of a family with five children to care for already, but the experience appears to have been a happy one for all concerned, with Patricia remaining “very close” to her adopted family.108 After she graduated, Patricia got a job in the RDS Library, before marrying quantity surveyor Gerald MacCarthy and moving to Pennsylvania. When Costello visited the United States as Taoiseach in 1956, Irish Ambassador John Hearne ensured that she and her husband were invited to as many of the official functions as possible.109 The couple had three children, but Patricia died tragically young in 1967.110

  Another major, and worrying, development in the family came when Declan contracted TB of the kidney, an unusual form of the disease which led to him losing a kidney. He had to go to a clinic in Switzerland for 10 months in 1946. At the time, Swiss mountain air was regarded as a cure for the disease—for those who could afford to go there. Declan was fortunate that his bout with the disease came just as new drugs like streptomycin were becoming available. He benefited from the new drugs, but a relapse meant he had to go back to Switzerland, staying in a hotel this time, at the end of 1947 and start of 1948—which meant he missed out on some significant political developments at home.111

  The other change in family life came just after the war, when Grace Costello married solicitor and economics lecturer Alexis FitzGerald,112 who was to have great influence on his father-in-law. Grace had qualified as a barrister in 1943, quite a rarity for a woman. Female participation in the legal professions was increasing, but very slowly. The number of female solicitors and barristers increased from just 1 per cent in 1926 to a still tiny 4 per cent in 1951.113 Her daughter believes Grace didn’t really enjoy the law, and only pursued it to please her father. In one of her early cases, she was presenting her brief when the judge asked her a question. Not knowing the answer, she simply paused and then continued without acknowledging the question. The judge later told a colleague that young Grace Costello was very impressive in court, but that the poor girl seemed to be a bit deaf!114

  During his enforced absence from Leinster House, John A. Costello continued his legal work. He served as the nominee of the Irish Bank Officials Association on an arbitration board established to decide on whether the officials should receive a bonus.115 He also continued his close association with the Electricity Supply Board. Dick Browne, his golfing partner, was chairman of the Board, while his old friend Arthur Cox was its law agent.116 Throughout his professional career, he was “unswervingly loyal to the ESB”, and would “fight back like mad” if opposing counsel tried to do down the board.117 He also had many cases of workmen’s compensation, in which he almost invariably acted for the worker rather than the company—a bias which was to stand him in good stead in his dealings with the Labour Party. However, his time in the political wilderness was not to last long.

  In a carbon copy of 1938, de Valera used defeat on a Transport Bill as an excuse to call a snap general election in May 1944. Costello campaigned vigorously, determined to win back his seat. He said the country had been “thrown into turmoil for the sole purpose of safeguarding the political fortunes of a political party … They have no policy for peacetime problems. They have, however, full determination to obtain security of tenure in their jobs.” Recognising that the election had been turned into a referendum on the question of whether the next government would be formed by Fianna Fáil or by a combination of other parties, he stoutly defended the principle of coalition. It was not coalition but “corruption and inefficiency” that had led to the fall of democracy on the Continent. “National Government in England and America has been found to be a source of strength. Why should it not bring unity and strength to this country?”118 He returned to the coalition theme frequently, as did Mulcahy, who said a coalition would ensure that “policies affecting the whole country could be brought about in the most open
manner, and would put an end to half-thought-out polices conceived in secret”.119

  The focus on coalition was understandable, and necessary if Fine Gael was to hold power again. The party didn’t even nominate enough candidates to form a government—it ran 57 candidates for a 138-seat Dáil.120 Again, neutrality was not an issue. The Fine Gael election ad for Dublin Townships stressed Costello’s role as Attorney General in negotiating the Statute of Westminster, which it claimed had made neutrality possible.121 His energetic campaign paid off—he won just over 26 per cent of the vote, only 500 fewer than MacEntee, and was elected on the first count. His running mate, the sitting TD Ernest Benson, didn’t fare so well, securing just over 19 per cent of the first preferences, which wasn’t enough to overtake the second Fianna Fáil candidate for the last seat. Both major parties had improved their position since the previous year—Fianna Fáil had 49 per cent of the vote, compared to 45 per cent for Fine Gael. Labour secured just under 6 per cent—the party was never in contention for a seat in the Townships constituency, feeling the squeeze on smaller parties normal in a second election.

  Back in the Dáil, Costello was also back on the front bench. In June he was named spokesman on External Affairs—however, Mulcahy carried out a reshuffle just three months later, making Costello spokesman on Justice, as well as assistant to himself as spokesman on External Affairs.122 Whatever his precise title, Costello soon resumed some of his favourite themes—objecting to the lack of an appeal to the courts from a decision by the Revenue Commissioners, to the politicisation of presidential and local elections, and to delays in bringing cases to trial.123 He also continued his strident opposition to the emergency powers assumed by the Government. When a bill to amend and continue these powers came before the Dáil in July 1945, he claimed that it would leave almost all of them intact—with the exception of those dealing with censorship. He argued that “the Government should be divested as quickly as possible of all the powers that were vested in them under the peculiar conditions and dangerous circumstances that existed in 1939”. De Valera insisted that Costello’s assessment of the powers that would remain was not accurate,124 and told the Dáil that the advice from the Government’s legal advisers was different to Costello’s.125 Four years later, Costello as Taoiseach would sponsor the revocation of the remaining Emergency Powers Orders.126

  Some of the themes raised during the earlier controversy over the Schools Attendance Bill, and opposition to Emergency Orders, surfaced again in Fine Gael’s attacks on the 1945 Public Health Bill. Costello told the Dáil that his party “look with extreme suspicion upon such a measure … the provisions in their general tendency are fraught with possible public danger and in particular instances in the Bill the dignity of the human person is insulted and the liberty of the individual set aside … this Bill is nothing less than a monstrosity”. While characteristically overblown, his rhetoric was prompted by genuine concerns. He pointed to the failure to consult the medical profession and the provisions for detaining people with TB, even claiming that the Bill gave the Minister power to ban perms and decide what swimming costumes could be worn. “Instead of dealing with the fundamentals, providing decent food, proper wages, decent houses, employment for the people, giving them education in washing themselves, and providing them with baths and a proper water supply with which to wash themselves, teaching them that the simplest precautions will be far better than any number of prosecutions, you are bringing in a measure the cost of which to put into operation will be colossal. Such a Bill cannot command respect, and can do nothing else but bring the law into complete contempt.”127

  He returned to many of these points during the lengthy committee stage of the Bill. He warned the Parliamentary Secretary, Dr Con Ward, that while Fine Gael would support legitimate powers, “we are not going to give him a blank cheque to exercise his inventive medical skill on the public”.128 The point of most of his amendments, he said, was that public opinion “must be informed and educated, not coerced”, warning that the use of criminal sanctions in such legislation would ensure its failure as it would not have public support.129 He returned in particular to the provisions for the forced detention of infectious persons, insisting that “a person afflicted with disease has still some rights left”, adding that the provisions of the Bill were “entirely unjustified by the moral law and, I think, possibly unjustified by the provisions of the Constitution”.130 On one day he accused Ward of fascist tendencies, asserting that his claim that the rights of the community were superior to the rights of the individual was “widespread on the Continent of Europe a few years ago”.131 The following day, he complained about “the socialistic tendency of present Government policy”. He claimed Fianna Fáil was invading “even the most private aspect of the lives of individual citizens”, and infringing the personal rights and personal dignities of the individual. The measures would, he claimed, lead to more bureaucracy, more staff, and therefore more taxation.132

  At a fairly late point during the committee stage, Ward introduced two new provisions to allow the Government to deal with expectant and nursing mothers and with children—provisions which would later become famous (or notorious) as the basis for the Mother and Child Scheme. Costello was not impressed, believing that the proposals would allow the Department “to do anything it likes regarding their subject matter”. He objected to the compulsory inspection of schoolchildren, and pointed out that Ward had said that mothers who could afford their own doctors were not subject to similar compulsion.133 The Health Bill was delayed, however, by the resignation of Dr Ward after allegations of tax evasion and malpractice at a bacon factory he owned in Monaghan. Costello pointed out that the whole matter had become public because of a falling-out of two members of Fianna Fáil after one of them (Ward) fired the brother of another, and suggested the Dáil should not be led into a similar situation again. He also said, fair-mindedly, that Ward’s case had been prejudiced by the establishment of a tribunal without any preliminary investigation into the charges against him.134 Despite this charity towards a political opponent, he later vociferously objected to the State paying Ward’s costs, as he “has been found guilty of a grave public scandal” and had “to leave a public position by reason of the findings of the tribunal”.135

  When the Health Bill was reintroduced in 1947 by the new Minister for Health, Dr Jim Ryan, the provision for compulsory inspection of schoolchildren again proved a focus for opposition, particularly from James Dillon. On 3 December 1947 he took the Minister for Health to court to test the constitutionality of the Bill, with Costello, Lavery and McGilligan as his legal team. As Dillon’s biographer, Maurice Manning, has noted, the court challenge allowed de Valera to play for time in his reply to (secret) objections to the Bill from the Catholic hierarchy—with the result that “the entire problem was handed over to the new government in February 1948”.136

  The conviction that the Government was amassing more power at the expense of the individual citizen informed many of Costello’s contributions to the Dáil in the early post-war period. He objected to the 1945 Land Bill because it would restrict appeals to the courts against Land Commission decisions;137 he objected to wage control without price control, claiming it had depreciated wages and purchasing power;138 and he continued his campaign against legislation by Emergency Order. Costello admitted that it wasn’t just an Irish problem, as in all parliaments there was a tendency “to derogate from the powers of the representatives of the people and shift the centre of gravity of the constitutional structure away from parliamentary institutions to that of the executive”. He claimed the Dáil was becoming “a machine merely for registering Government decisions” rather than a deliberative assembly.139 His claim that legislation by order was excessive was given force in April 1946, when Finance Minister Frank Aiken disclosed that a total of 7,846 orders and amendments to orders had been made since the start of the Emergency.140

  Costello raised a particularly serious legal lapse by the authorities in the D
áil in May 1946, during a discussion of a supplementary estimate to cover law charges. He began by complaining that cases were being sent to the military tribunal when the ordinary courts were working well, with trained lawyers available to oversee them and properly assess the evidence. He questioned how the Attorney General decided which cases to send to the tribunal, suggesting that “a particular individual is selected to be ‘rail-roaded’ to a conviction”. He then produced an example of a case in which he was involved. The defence team hadn’t been given a copy of a witness statement—but they took the risk of demanding it be produced. When it was, they found that it directly contradicted the evidence the witness had give to the tribunal. And, of course, counsel for the prosecution had the statement in their possession all along and knew that it conflicted with the evidence given in court. Costello conceded that this was the only case of its kind that he knew of, but insisted it should never happen again, and that counsel for the State should be directed by the Attorney General “not to win a case but to see that justice is done”.141

  The following month, he criticised tribunal procedures again, claiming that a man had been executed on foot of an Order which his counsel and his solicitor could not procure and which the accused had not seen.142 This assertion was viewed within the Department of Justice as “untrue and … irresponsible to the last degree”. The case involved the murder of Gardaí by Patrick McGrath and Francis Harte; they had been sentenced to death for murder, and the Order to which Costello referred dealt only with the manner of trial and the method of execution.143 With considerable bitterness, an official wrote that Costello appeared to be motivated by “irritation at any step which tends to emphasise that the important question in a criminal trial is whether the accused person is guilty or not. That sound doctrine is not agreeable to lawyers who, like Deputy Costello, are making a lot of money by getting convictions quashed on purely technical grounds … It is a serious misfortune that the main speaker of the Opposition on such matters should be a lawyer whose professional interests are so frequently at variance with the public interest.”144