“Recent changes were … rather a hurtful shock to me.”1
JOHN A. COSTELLO, DECEMBER 1959
“Put upon your banners the Just Society, that Fine Gael is not a Tory party.”2
JOHN A. COSTELLO, 1969
“Am I a happy man? Yes, perfectly.”3
JOHN A. COSTELLO, NOVEMBER 1974
The day after he lost office, Costello was back at the Bar, starting work immediately with a brief in Cork.4 He was quite happy to return to the law after serving as Taoiseach—and there were plenty of people in the legal world happy to welcome him back.5The speed of his return to the law also demonstrated his priorities—as before, he would be a part-time Opposition politician.
The summer break was spent quietly. He told his friend Tom Bodkin that he was enjoying his first Long Vacation for four years. “I have done literally nothing—played golf and read and brought my grandchildren to the sea when the weather permitted.” However, as a result of “a family conspiracy”, he was persuaded to go to Cannes on holiday in September. He told Bodkin “my own honest desire was to stay at home but the conspiracy was too much for me”.6 Despite his reluctance, he was later reported to have had “a most enjoyable and particularly a most restful holiday in Cannes and looks very much the better for it”.7
The loss of public office meant he had to deal again with the tax authorities, who seemed oblivious to his recent eminence. After receiving a tax assessment in September 1957 he had to complain that the inspector seemed unaware that he became a senior counsel 32 years before and was no longer “an ordinary Barrister-at-Law”. Worse, the inspector had not adverted “to the position which I occupied until the 20th March last”.8
Officialdom may have forgotten that Costello had been Taoiseach; but despite his return to active work at the Bar, he remained leader of the Opposition. One of his first tasks in that role was to respond to the first Budget of the new government. In a broadcast on Radio Éireann, he criticised Fianna Fáil’s failure during the election to signal its intention of removing food subsidies. “It would have been better if the sacrifices now writ so large in the Budget had been writ even small in the election campaign.”9 In the Dáil, Costello rejected suggestions that the new government was following the advice of the Capital Advisory Committee in abolishing the subsidies. He pointed out that the Committee had recommended abolition in order to sustain the capital programme—not as a relief for general Government spending. “What they have done is not what the Capital Advisory Committee said they were to do—utilise the food subsidies for capital purposes because capital was so scarce—but they have done what the Capital Advisory Committee said that they were not to do at all—used them as current revenue.”10
However, he was later to stress that Fine Gael’s opposition to the Government was “moderate”, because the party “could not honestly oppose much of the legislation proposed … because they represented merely a continuance of policies which we had introduced when in Government”. In the same speech (to the Fine Gael Ard Fheis in February 1958) he claimed Fine Gael had “placed the national interest before its Party interest” in 1956, introducing unpopular measures to tackle the balance of payments deficit and meeting the challenge of the IRA. Because of that, the party was in opposition. “We had no illusions as to its effects on our political fortunes, nor did we smugly console ourselves with the consideration that political virtue is its own reward. Our recompense is that we gave an honest headline for future politicians to follow and did something to increase the experience of reality by our democracy.”11
There were some other pointers for the future in his early contributions from the opposition benches. Proposing a fact-finding committee to educate TDS and senators about the implications of the EEC and the Free Trade Area—he claimed that 80 per cent of Deputies didn’t know the difference between the two—Costello firmly said Ireland could not leave itself outside their scope. He said the proposals for a Common Market presented a challenge, adding, “Personally, I think they also present us with an opportunity.” But that opportunity could not be availed of unless politicians were fully informed.12 His proposal was rejected by the Government. He also hinted that he realised his generation had nearly finished its time at the top in politics. “If we have not reached the end of a chapter in Irish history, at least we are nearing the end. You have only to look around you in this House and see that those people who bore the brunt of the effort to create the State, and subsequently to maintain it, are passing on.”13
The most significant development under de Valera’s final government was the publication of Economic Development, written by Ken Whitaker, in November 1958. In March of that year, Costello foreshadowed some of the themes of that document. He argued in the Dáil that “it is about time that a little bit of expansion was tried … You cannot get that increase in business activity which can give its full and essential contribution to the ending of unemployment and emigration … unless we can get foreign capital in here … God only knows the amount of capital we have lost because of the Control of Manufactures Act.”14 John F. McCarthy has pointed to Ken Whitaker’s support for foreign investment as one of the important differences between Economic Development and Costello’s 1956 Policy for Production (the other difference he noted was the greater economic sophistication of the former).15 Costello’s Dáil comments, made before the publication of Economic Development, suggest there was less of a difference on foreign investment than McCarthy believed.
On the document itself, and the accompanying White Paper, Costello was reserved—but crucially, he and Fine Gael did not oppose the new direction. Ken Whitaker found the lack of criticism from the Opposition benches “quite extraordinary”, and very welcome.16 Costello told the Dáil in April 1959 that he didn’t believe the documents contained schemes “which will come to any degree of fruition or will introduce any substantial increase in employment”.17 He claimed Fianna Fáil policies were like dud cheques. In this case, they had to get “a cheque which would not be accepted by the people … marked good by the most distinguished civil servant we have in the service of this State”.18 And he pointed out that his government had put in place “two very valuable contributions to the building up and strengthening of our industrial fabric”—tax breaks for exports, and the attraction of foreign investment.19
The last point may have been stretching it a bit, but Costello could certainly claim that his government had started to pursue policies very similar to those in Economic Development before it left office. Costello’s plan was based on the incorrect assumption that agriculture would be the main driving force of expansion—but so was Whitaker’s.20 Ronan Fanning suggested that “the larger historical significance” of Whitaker’s initiative “was ultimately psychological … [it succeeded] because so many so badly wanted it to succeed”.21 Had things worked out differently, perhaps Costello’s Policy for Production would have been remembered as a turning point in Ireland’s economic history.
Some of those closest to the former Taoiseach were trying to continue the process of modernising Fine Gael. The main movers were his son Declan, son-in-law Alexis FitzGerald, and the former Minister for Health, Tom O’Higgins. Alexis and Declan were the joint editors of a new party paper, the National Observer. In his first editorial, FitzGerald suggested that “all the sacred cows may be chased around our pasture and we are not without hope that some of them will expire from the exhaustion of the exercise”.22 As could be expected, some of the owners of the sacred cows were less than enthusiastic about this idea. Tom O’Higgins, chairman of the paper, received a blistering complaint from party grandee Michael Hayes that “the National Observer is so busy belittling Fine Gael that it has no time for praise”.23
In April 1959, Bishop Michael Browne of Galway wrote to Costello complaining about comments concerning him in an issue of the paper. The Bishop noted that the directors of the company were O’Higgins, FitzGerald and Declan Costello, and complained that the language used about him had “heretofore … been associated with anti-clericals and Communists”. Alexis—who had written the offending article—told his father-in-law he stood over the comments, and believed it was their duty to speak out with “a frankness, if not with an authority or a responsibility” equal to Bishop Browne’s. Costello wrote a frosty letter to the Bishop, telling him the three individuals he mentioned “are exemplary Catholics. There is not a grain of either anti-clericalism or communism in any one of them, and I am surprised that Your Lordship should have thought it fitting to suggest otherwise. I am glad to have the friendship of Mr T.F. O’Higgins, and I thank Almighty God for my son Declan and my son-in-law Alexis FitzGerald.”24
Their other initiative was the Fine Gael Research and Information Centre. The aim here was to generate discussion on new ideas, particularly on social and economic issues. As Declan Costello recalled, they felt they had to create public interest in Fine Gael if they were ever to get back into power.25 Their work was welcomed by The Leader. “It has often been said that the one class of men who do not continue their education in after life are those who most need it, politicians.”26
In opposition as in government, John A. Costello relied heavily on these close collaborators. For instance, in February 1958 he wrote to Alexis about a request from the Irish Times for him to contribute an article to a series about the present and future prospects for the country. “Needless to say my first reaction is not to turn myself into a journalist, and, in accordance with my practice, I am leaving the matter lie for the moment, but perhaps you would think about it and talk to Declan and Tom O’Higgins and any others you think proper …” Predictably, FitzGerald was “very keen” that his father-in-law should write an article, which duly appeared under the very Costello-like headline “Pessimism throttles our progress”.27
The other key figure in Costello’s team was his secretary, Ita McCoy. A sister of Kevin and Dr Tom O’Higgins, she had been present when their father was murdered by the IRA during the Civil War. She had come to work for Costello when he became Taoiseach, having previously been personal secretary to Dick Mulcahy. Later, she was secretary to her nephew, Tom O’Higgins, when he was deputy leader of Fine Gael, and then to Garret FitzGerald when he was Minister for Foreign Affairs.28 Her efficiency was legendary—which was just as well as Costello juggled political, legal, constituency and personal affairs. She was also better able to decipher his terrible handwriting than most mortals. Enclosing a message for her to type in March 1958 he admitted that it was “indecipherable as usual”.29 On his retirement, he paid her a handsome tribute, describing her as “my guide, philosopher, and, I am glad to say, my friend. When I was dictating a speech or even in my legal work … I know that I can’t make a mistake because if I do she spots it at once.”30
As we saw in the last chapter, Labour politicians were bruised and bitter after their experience in government, and determined to follow a more independent line. In July 1957 James Larkin objected to the Ceann Comhairle’s description of Costello as leader of the Opposition. “I have a great regard for Deputy Costello’s work as Taoiseach … However, he is not my leader …”31 There were tensions, too, within Fine Gael. Liam Cosgrave held Gerard Sweetman personally responsible for the party’s defeat at the polls, and told him so. He reportedly told the patrician Sweetman that Fine Gael “was no longer led by people living in big houses at the end of long avenues”. For the next few years their communications were “strictly official”.32 Sweetman, meanwhile, was resentful of the way he had been treated by Costello, and implacably opposed to another coalition with Labour.33
Costello wasn’t the only Fine Gael frontbencher who returned to a full-time career outside politics. The result was that much of the work in the Dáil devolved on those who were full-time politicians, principally Mulcahy, Cosgrave and Dillon.34 Despite the Government’s seemingly unassailable majority, Dillon did his best to keep Fine Gael on its collective toes, claiming in September that they had been waiting six months for de Valera to “get cracking”, and the only result so far was “cracked” prices. “This Government may not last long, and it is of vital importance to this country that it should be succeeded by a strong Fine Gael Government, for which we should start organising now.”35 Costello, meanwhile, was proclaiming that he remained optimistic “because my faith in the country’s future has never been shaken or dimmed … Not even at the worst moments of last year’s great economic stress did Fine Gael lose faith in the fundamental capacity of our people to overcome any problem that might temporarily thwart them.”36
This declaration of faith in the people was made at the start of a by-election campaign in Dublin North-Central, caused by the death of Fianna Fáil TD Colm Gallagher. The result was a surprise—and comfortable—victory for Independent Frank Sherwin, who took just over a third of the first preference vote. The Fianna Fáil candidate came second with 27 per cent while Fine Gael took just under 20 per cent. Sherwin had more than doubled the 15 per cent he received in the general election just seven months before, while Fianna Fáil had lost 21 per cent from its first-preference vote. By contrast, the Fine Gael vote was down by only 2 per cent, a reasonably acceptable result given the swing to Sherwin.37
There were five further by-elections during Costello’s leadership of the Opposition. Fine Gael’s best result was in Dublin South-West in July 1959, where Richie Ryan won a seat from Fianna Fáil. In three of the other contests, the party’s vote was lower than in the general election—a 5 per cent drop in Dublin South-Central in June 1958, and 6.5 per cent in Clare and 1.4 per cent in Meath in July 1959. It wasn’t disastrous, but it certainly didn’t indicate that the party was recovering lost ground, particularly as the Fianna Fáil vote was substantially down in each of the five by-elections. In its commentary on the Dublin South-Central by-election, The Leader denied that any moral was to be drawn from the result. “… as there is at the moment nothing very exciting happening, what people call ‘apathy’ gives the tone and result.”38
But if by-elections failed to generate much excitement, a Fianna Fáil proposal to change the electoral system certainly did. As we saw in Chapter 6, Costello had advised de Valera not to specify the use of PR STV in the 1937 Constitution, arguing that the system would eventually lead to a large number of small parties and unstable governments; better, he argued, to leave the type of proportional representation open, as it had been in the Free State Constitution. De Valera rejected this advice, on the grounds that a government could find an electoral system that seemed proportional, but in fact wasn’t.39
Twenty-one years later, de Valera had changed his mind. Not alone did he want to get rid of the single transferable vote, he wanted to abolish proportional representation altogether. The reason was the very one advanced by Costello in 1937, that the system led to a multiplicity of parties. When the Bill was introduced in the Dáil on 12 November 1958, Costello (along with Norton) opposed its first reading, normally a formal introduction without a vote. He acknowledged that this was an unusual tactic, but said it was “essential that we should at the earliest opportunity emphasise our implacable opposition” to the measure. Lemass’s testy response indicated the Government’s annoyance at his action.40
When it came to the substantive debate, Costello accused Fianna Fáil of arrogance in insisting that PR must go “just because they were beaten twice by the electorate under the most democratic system in the world”. He accepted that he had argued that PR would lead to a multiplicity of parties, but now added the rider that if voters wanted a number of parties, they were entitled to have them. The impact of the alternative system could only be guessed at—the Irish Parliamentary Party had been wiped out in 1918 under the first-past-the-post system, even though it got a higher percentage of the vote than Fine Gael received in 1943, 1944 or 1948. “P.R., if you like to say so, saved Fine Gael at that time”—an argument, it might be thought, hardly likely to appeal to de Valera.41Costello believed that once the system was changed, it would be almost impossible to change it back, because Fianna Fáil would have an unshakable grip on power. “A dying generation such as we are has no right to impose its will upon young people … They will never get a chance to change it by constitutional means and it will require something like a revolution to do so.”42
The Government announced that the presidential election would be held on the same day as the referendum, claiming this would reduce costs. Nonsense, Costello told the Dáil: “it is the last effort to try to save the Referendum Bill from defeat by throwing the personality of the Taoiseach into the arena at the last minute … they are asked ‘Do not let the poor old man down; do not let him down now by voting against him on the Referendum Bill’”.43
Outside the Dáil, Costello pointed out that the main argument for change was to ensure that governments had a strong enough mandate to give stability and achieve economic progress. But the current government had one of the largest majorities in the history of the State, and after almost two years in office “even the most optimistic cannot say that there has been anything other than a slight indication of recovery”.44 Without any public demand, the issue of electoral reform had been brought forward and was now dominating debate. “The Government appears to have lost all sense of perspective in its dealings with the affairs of the country … the proposals involve a leap in the dark and a journey into the unknown”.45 In what was to be his last Ard Fheis speech as leader of the Opposition, he accused de Valera of being “obsessed with the fact that he has been twice defeated under the present electoral system”. The Taoiseach admitted he had been wrong on this issue in 1937 and “now blandly states … that he is right now radically to change the Constitution in a revolutionary manner without adequate examination or opportunity for calm consideration”.46
In a speech in Cork in April 1959, Costello linked the two votes, on PR and on the presidency, saying voters had to “make decisions of grave import to the future of the country”. He was confident that “the proper decision” would be made in the referendum. Evidently, he was less optimistic about the presidency. He suggested the holder of that office should have the confidence of every section of the community; he didn’t mention de Valera by name, referring to him as “General Seán MacEoin’s opponent”, and pointing out that he was “a highly controversial figure”.47 In his final broadcast of the referendum campaign, he warned that “governments can be too strong”. The aim of the change, he claimed, was “to secure the election of a government which can rule in the knowledge that it has an over-whelming majority in a subservient Parliament from which all effective Opposition is substantially excluded … Hold fast to your own voting system. Have the courage to say NO …”48
The voters did exactly that, though it was a close run thing—the proposal was rejected by 51.8 per cent to 48.2 per cent. Costello’s Dublin South-East constituency had the highest voter turnout in Dublin, rejecting the Government’s proposal by a thumping 64.4 per cent to 35.6 per cent. However, the voters were far more enthusiastic about the idea of a President de Valera—he defeated MacEoin by 56 per cent to 44 per cent. This, naturally, led to a change of Taoiseach, with Seán Lemass the sole candidate for the leadership of Fianna Fáil and therefore of the Government.
Costello told the Dáil he and his party opposed Lemass’s appointment “not … on the personality of the Taoiseach designate but on the fact that he and the Government … have been guilty … of grave dereliction of public duty and gross breach of confidence”. He said they had been elected on the promise of dealing with the economy, but instead had wasted time by attempting to abolish proportional representation. The response from the Fianna Fáil benches was significant as it drew attention to Costello’s less than exemplary Dáil attendance—Michael Davern jeered that he “was not two hours in the House in the past two years”.49
Costello’s part-time leadership was causing concern within Fine Gael as well. He generally attended the Dáil after court had risen for the day; and if the High Court was in Cork, he didn’t attend at all. As well as being a lucrative source of cases, his work in Cork had personal attractions—he was able to stay with his daughter Eavan and her husband, Ralph Sutton, then living in the southern capital.50 From the late 1950s on, the High Court sat twice a year in Cork for two weeks; there were also two one-week Assizes each year, when appeals would be heard from the Circuit Court. As in Dublin, most of Costello’s work involved personal injury cases.51
His ability to attract briefs in Cork—where it was difficult for “outsiders” to break in—showed the high reputation which he had as a barrister.52 In November 1958 he told Tom Bodkin he had “spent three continuous weeks in Cork with the High Court”53—missing two weeks of Dáil sittings as a result. Another example came the following March. The Dáil sat on Tuesday and Wednesday the tenth and eleventh; however, the High Court was on circuit in Cork that week. The leader of the Opposition did his best to be in two places at once, travelling to Cork on the Sunday evening, returning to Dublin on Wednesday evening for the only vote of the week (on the Budget), before travelling back down to Cork early on the Thursday morning so he could appear in court.54 The business in the Dáil was not particularly vital on this occasion, but still it was no way to show the country, or Fine Gael, that he was serious about his leadership position.
In opposition, the usual problems of poor attendance by Fine Gael TDS resurfaced. Mulcahy complained to Costello about the running of front bench meetings and the attentiveness of the members: “they should sit to attention in an undistracted way … one of the things that had been completely disturbing to the whole atmosphere and spirit of the Front Bench was the way in which, first, people came in late, secondly that they were not paying attention to what is going on, thirdly they take out a paper and begin to have a conversation about something or other …”55 There was, as the US Embassy noted, “bickering” within the party, particularly on the leadership question, and Dillon for one had been critical of poor Dáil attendances and the front bench’s failure to give a clear lead on policy development.56
Frustrated by the situation, Mulcahy visited Costello at his home in Herbert Park in September 1959. Their discussion on the leadership was recorded in Mulcahy’s typically verbose and convoluted style. What was crystal clear, though, was that Mulcahy held Costello responsible for many of the problems. Mulcahy said he would not lead the party after the next election, either in government or in opposition, and that the two of them had a joint responsibility to give a lead to the party. Costello replied that he had been anxious to avoid giving the impression that he was “ousting” Mulcahy. The party leader said this proved that the dual leadership was preventing Costello from doing things he should have been doing, as well as raising questions about his leadership capacity. “… his line … that he had been holding back in order not to appear to be ousting me … was not at all an explanation of the difficulties that we had been experiencing with him about lack of attention … The principal difficulty [was] … that at no particular point did he show a sustained desire or attempt to wield a sustained influence in pushing ahead any part of the work.”
Costello said he was prepared to assume the leadership of the party. But it wasn’t at all clear to Mulcahy how he intended to mend his ways, although he acknowledged, “The fact that he says that he has been holding back because of my position contains the implication that he is prepared to come very definitely forward.” Crucially, however, Costello said he would have to continue at the Bar for the next couple of years, as “he had very considerable expenditure for particular private and domestic reasons”.
He also appeared to be worried about opposition to him within the party. He believed Liam Cosgrave was annoyed at being transferred from the External Affairs portfolio to Industry and Commerce. Costello said that Industry and Commerce was “a more important position”, but Mulcahy pointed to the lengthy list of legislation which Cosgrave would have to deal with in the Dáil in the coming session. “I suggested that this was a very heavy responsibility that might very well cool the ardour of anybody who had to deal with it.”
Costello also “had certain difficulties in his mind about Sweetman”. Mulcahy replied that Sweetman and Dillon “were the two people who were always there and always ready to step into the breach … The only satisfaction they wanted was to be in the doing of things and to be feeling that they were done purposefully and effectively.” The two men agreed to discuss the leadership with a small group (by inference, the two of them along with Cosgrave, Sweetman and Dillon) which had been set up to examine the recruitment of new party staff.57
Costello talked the situation over with two of his closest confidants, his son Declan and Patrick Lynch. The two younger men independently reached the opinion that Costello could take over the leadership on a part-time basis (this opinion was, according to Lynch, backed by a “similar opinion from Cork”—presumably from Ralph Sutton). Lynch argued that it was “surely wrong and even dangerous to attach decisive importance” to having a full-time leader. He said this was a “pretext”, adding that the parliamentary allowance was so low that the best man could not be attracted “unless he is subsidized by his shop, his farm or his trade union”. In any event, other attributes were more important, particularly “the qualities of judgement, experience and vision to inspire an organisation to follow him … a part-time man with this essential ingredient of leadership is more valuable than a full-time chief who lacks it”. He felt that Costello was in any event qualified by his 11 years as either Taoiseach or leader of the Opposition, which gave him international prestige and a following outside Fine Gael. In a dig at Dillon, closely associated throughout his career with the Ancient Order of Hibernians, Lynch pointed out that Costello had “never been associated with any sectarian organisation … Personally I should be sorry to see the AOH exercise decisive influence in Fine Gael.”58
On Saturday 17 October Mulcahy informed a meeting of the party’s front bench that he intended to retire. Costello said the dual leadership structure should be abandoned; a number of others (Dillon, MacEoin, Mulcahy and Michael Hayes) agreed on a single leader, but insisted that that leader should be full-time.59 Costello had apparently approached Liam Cosgrave about becoming his “managing director” in the Dáil while he became the formal leader.60 Not surprisingly, Cosgrave rejected this suggestion; he also believed a full-time leader was needed. So too did Gerard Sweetman, who also had more personal reasons for opposing Costello, going back to their poor relationship in government. Declan Costello remained of the opinion that his father could contest and win a leadership election. But Jack Costello realised he was not getting the support of the people he needed, that Sweetman was doing his best to ensure that he was removed from control of the party, and that even if he won the vote, his leadership would have been difficult.61 He told his driver he was standing down because “a lot of them don’t want me and I think it’s better to go”.62
Accordingly, in advance of the meeting of the parliamentary party at which Mulcahy was to announce his resignation, Costello wrote to him setting out his views. He repeated his belief that it was “wrong in principle” to insist on a full-time leader. His own circumstances were such that he could not give up his practice. In order to avoid any misunderstanding that might arise from their joint resignation he had offered to take on the leadership part-time, with other front bench members taking up some of his functions. However, “some of our colleagues were clearly of opinion that a whole-time Leader was essential”. Therefore, he had come to the conclusion “that I should not embarrass the Party in their choice”; he would stand down as leader of the Opposition, would not be a candidate for the leadership, and would occupy “the dignified, if unaccustomed, position of a back-bencher”. He sought and received Mulcahy’s agreement that he need not attend the meeting at which this letter was read out.63
The following day, James Dillon was elected leader of Fine Gael in a contest with Liam Cosgrave. An attempt by Michael O’Higgins to persuade Costello to change his mind was headed off by Mulcahy, who said his decision was final (as Costello had said in his letter). According to Dillon’s memoir, he asked Mulcahy to give him the voting figures, and was told he had received 66 votes, against 26 for Costello and six for Cosgrave. As Dillon’s biographer, Maurice Manning, pointed out, these figures couldn’t be correct, as only 57 people were entitled to vote. But they do suggest “that a substantial section of the party still favoured a Costello leadership—even on his own terms”.64
However, that was not to be. The British Embassy reported to London that Costello’s leadership of the Opposition “had proved a disappointment to his party”, and that while there were doubts about Dillon’s ability, “he is certainly a great improvement on Mr Costello” (a judgement based at least in part on lingering resentment at the declaration of the Republic).65 There was considerable surprise that Costello had ruled himself out of the running.66 In Niamh Puirséil’s brilliant, if rather unkind, phrase, he had been “firm … that if there were no fees there would be no foal, so that was that”.67
In public he was dignified, insisting that the decision was his own. But a letter to a priest friend in America showed his real feelings. The recent changes, he said, “were … rather a hurtful shock to me … In my view there had been a conspiracy, with a few only active in it … I felt that I could have defeated it if I wished. After grave consideration and taking the best advice that I could I decided to clear out and abandon a position that would have inevitably brought me great trouble and worry, and would have entailed blaming me if political success were not achieved at the next Election. I did not want to cause a split … The timing and the manner of procedure were hurtful to me, but I tried, not always with success, to take it as God meant it to be taken by me … My personal relations with James Dillon continue friendly.”68
An indication of this friendly relationship was Dillon’s request for policy suggestions for his speech to his first Ard Fheis as Fine Gael leader. The former Taoiseach replied with a typically blunt assessment. He acknowledged that their ideas on policy formulation were rather different; Costello preferred to have a wider group than the front bench or even the parliamentary party involved, and suggested that every idea, even “cranky” ones, should be considered; he also suggested that expert advice should be sought from economists, as “politicians are not expert in the complicated problems that fall to be solved” (this of course was his own practice, when he relied heavily on Patrick Lynch and Alexis FitzGerald). He said the pursuit of an overall majority for Fine Gael was “illusory, will not be successful, may do damage and cause such disappointment as to break the spirit of Fine Gael supporters”. He added that while it was understandable that those depending on the votes of farmers might be apprehensive of anti-Labour feeling among them, scorning Labour preferences would prevent Fine Gael gains.
The only hope for Fine Gael, he argued, was to attract the young people, and to avoid at all costs the label of “Conservatism or Toryism”. He then went on to outline a relatively radical position. “I appreciate that the use of the word ‘progressive’ is rather futile and that Fine Gael, any more indeed than the country, can never become a purely Socialist Party, but there is a danger that it may be, or appear to be, something like a fading aspidistra in a Victorian drawing-room.” As an alternative, he suggested “at least a hint of travelling some direction along the line of vocationalism”, as well as “a scheme … by which the workers could be given some share and interest in the business”.
International isolation, he suggested, was a major cause of Ireland’s economic failure, and he viewed Frank Aiken’s policy at the UN as “the traditional Fianna Fáil policy of isolationism”. The alternative, of securing the friendship of traditional friends, particularly the United States, would make Ireland more attractive for investment, and would not “necessarily, or inevitably, lead to joining such an organisation as NATO”. On the North, he urged an approach to the British to pressurise the Northern Government to remove discrimination against Nationalists. “They should be forced to abandon the scheme of gerrymandering, to restore voting by proportional representation, and to take every step to give the Catholic minority their just rights.” This would allow the government in Dublin to tackle the IRA with public support. “I had intended to take these steps had the Government not been changed in 1957.” (This indicates that he was, as suggested in Chapter 13, interested in pursuing reform within Northern Ireland, rather than concentrating on partition.)
He harped once again on his old theme of developing culture and the arts. “If we could secure the manufacture of objects of art or goods with a distinctive design, devoid of leprechauns, shamrocks and shillelaghs, we might create a magnificent market.” The former Taoiseach also suggested that an Irish television service was inevitable. “If we are not to have rubbish for our eyes as well as for our ears it is essential that our own musicians, artists and craftsmen should be encouraged, and others made welcome.” And he called for an end to live horse exports, a move resisted by Dillon when he was Minister for Agriculture. “In loyalty to you I laid aside my personal opinion on this matter, and consequently suffered some political disfavour. It is not, however, for that reason that I recommend the adoption of this policy but from firm conviction …”
The most interesting part of the memorandum deals with economic policy. Costello advocated a reduction in the number of departments and ministers to allow for the creation of a Department of Economic Planning. He disapproved of the creation of a Planning Section within the Department of Finance; he felt it should have been set up in the Department of the Taoiseach rather than in Finance, “the traditional role of which is not that of economic planning”.69
Costello’s views on economics, and particularly on getting control of planning away from the “dead hand” of Finance, were very much in line with the ideas his son Declan was pushing within the parliamentary party. They may not have been viewed as particularly helpful by James Dillon. And of course, it was much easier to advance such ideas from the backbenches than as leader—as Costello himself had found. But he continued to float what were, in Fine Gael terms, fairly radical ideas, suggesting in May 1961 that “there will be a break-up of the old political position here in the next ten years”. He said it would no longer be enough to shout for one of the two big parties, or “Up Dev”. In fact, he thought, the “left wings of Fianna Fáil and Fine Gael might unite with Labour” to form an alternative to the existing parties.70
Once he resigned as leader of the Opposition, he clearly wasn’t going to be Taoiseach again, so arrangements were made to have his official portrait painted. A portrait of each former holder of the office is hung in Leinster House, in what is known as the Taoiseach’s Landing, above the main stairs up to the Dáil chamber. To paint his portrait, he chose Seán O’Sullivan, a talented if somewhat wayward artist with an alcohol problem. Costello took the precaution of interviewing him in his studio, reporting to Finance Minister Jim Ryan that he “looked in good form and his Studio was in good shape, having all the appearance of work and attention”.71 The portrait was duly completed, but by convention not hung until the subject retired from the Dáil. It was to be another nine years before O’Sullivan’s portrait of Jack Costello would join those of his predecessors. In fact, he served as a backbencher longer than any other former head of government. W.T. Cosgrave remained in the Dáil for a similar period after he left office—12 years—but most of that time was spent as leader of the Opposition.
As a backbencher, he often made the point that he was speaking for himself, not for his party. He was badly caught out during a debate on the 1967 Finance Bill when he criticised a provision which, as Finance Minister Charles Haughey pointed out, had actually been proposed by Fine Gael. Costello rather weakly replied that he knew of no party decision on the issue. “I am criticising this Bill and, if the Minister can answer my criticism, let him answer it by reasoned argument. It is no argument to say that somebody’s spokesman said this, that or the other, and it shows that the Minister is in a parlous position indeed when that is the only thing he can say.”72 Ministers also criticised his Dáil attendance record. Under attack from Costello, Neil Blaney waspishly advised him not to get so worked up “for the little while he appears in the House”.73
The law continued to conflict at times with politics. During a by-election campaign in Sligo-Leitrim in February 1961 he was asked by local TD Mary Reynolds to speak at a meeting but had to refuse as he had a consultation on the Monday, two “very important cases in Court on Tuesday”, and then had to go to Cork on the Thursday.74 In March 1960, he was lobbied by a number of Pioneer Associations to oppose extended pub opening hours. He told one correspondent that he too opposed the new hours, but “as the vote took place last Thursday at an hour when I had to be in Court I was unable to be present”.75
When the new Minister for Justice, Charles Haughey, brought in legislation in 1962 to further reform opening times, Costello again opposed extended hours, though he insisted he was “not a killjoy or anything in the nature of a puritan in these matters”. His view was that the shorter the hours, the better. “Anybody who has had experience of the evil effects … of late night drinking in public houses cannot but feel appalled at the notion of giving any additional scope for those very terrible evils.” However, as he acknowledged during the debate, in his legal practice he frequently applied for licences on behalf of clients. Later, in a Budget debate, he welcomed increased taxation on alcohol, though he added that he was not “in any way a confirmed pussyfoot or, I hope, intolerant in the matter of intoxicating drink”.76
His busy legal career thrived. Costello was particularly proud of his role in the Educational Company case, which outlawed picketing to enforce a “closed shop”. While unions were outraged by the decision, Costello regarded it as an extension of personal rights, as well as showing that the Constitution had some real vitality.77 The case arose from a dispute involving the Irish Union of Distributive Workers and Clerks, which picketed the premises of the Educational Company after its 16 members there voted not to work with nine employees who had refused to join the union.78 The union claimed this was a trade dispute, and the picketing was therefore legal under union legislation dating from 1906. Costello denied this, saying it was “fundamentally … an effort of this particular trade union to organise its workers in the plaintiffs’ employment”. The Educational Company, he pointed out, had no dispute with anybody, and had a right to carry on its business without being picketed, unless there was some legal justification for it. Describing the union’s action as “ruthless”, he said the 1906 Trade Union Act must be interpreted in the light of the Constitution.79
He argued that it would be “in the teeth” of Article 40 of the Constitution for a group of people to be able to order other people to join a union, and say, “if you do not, we will force your employers to dismiss you”. Citizens had a right to form associations, but unions didn’t have a right to force people to join them. The Constitution, he said, guaranteed the citizen’s personal rights, one of which was to dispose of his labour as he wished and not as he was dictated to by another individual or group of individuals.80 In December 1961, the case finally came to a conclusion in the Supreme Court, and the judges agreed with John A. Costello. Union leaders claimed the decision threw unions back 60 years.81 Costello dismissed this claim, saying the outcome of the case would be good for the unions and good for the country. “I cannot concede that it is necessary for trade unionism and its development that they should be in a position to want to achieve what they regard as justice by committing an injustice.”82
Those who worked on cases with Costello remember his clarity of mind and expression, his directness, and “his total lack of any semblance of superiority which during his time some of his senior colleagues seemed to exude”.83 This last quality was demonstrated in the late 1950s or early 1960s. Tom Finlay was assisting him on a case, briefed by Alexis FitzGerald, and a complicated and esoteric point of law came up. Finlay told Alexis he didn’t know anything about it, and while he could go and look up the references, he quite understood if he wanted to brief something else. Don’t worry, came the reply—Mr Costello says he’ll do it. And sure enough, the former Taoiseach very quickly produced “a document of precision [and] correctness … he was interested in it, so he said he might as well do it”.84 No matter how eminent a barrister he was, he remembered the key to success—good preparation. He told his driver that winning a case depended on reading a brief properly—the barrister must know all the little details that are likely to come up.85
A solicitor who briefed John A. Costello in the late 1960s and early 1970s recalls that once he accepted a brief, “he presented his client’s case fearlessly, with vigour and clarity”. In later years he also benefited from the respect of judges, all invariably much younger than himself, who allowed him more latitude than most.86 Two future chief justices, Tom Finlay and Ronan Keane, who knew Costello at this time, agreed that he was brilliant in front of a jury, especially in personal injury cases, which became much more common in the 1950s and 1960s. Costello almost invariably appeared for the plaintiff in these cases. They also agreed that while he loved being in front of a jury, he refused to get involved in bargaining to settle a case. Costello had the attitude that he was paid to fight cases, not settle them. If bargaining in the Round Hall of the Four Courts had to be done, the other senior counsel in the case would generally do it.87 This frequently resulted in Costello being left in the courtroom while the talks took place, grumbling to himself that he couldn’t see why the case shouldn’t go on.88
One case which he did settle involved a well-known businessman who sued a trade association for libel after it circulated a negative credit reference on him. The businessman believed the source of the incorrect information was a neighbour who held a grudge against him; but the trade association refused to divulge its source. Costello advised that an application should be made to the Master of the High Court for an order allowing them to seek the information from the association. During the course of his argument, he asked a rhetorical question about how the association came to such a poor opinion of his client. “Did it look into its own corporate heart?” This reference to de Valera’s famous remark brought a smile to the face of the Master (appointed to the office under an Inter-party Government), who granted the order. The association immediately settled to avoid the embarrassment of having to disclose its source.89
While much of his work concentrated on personal injury and motoring cases, he did take on at least one murder case as a favour to a solicitor friend. He was very pleased with himself when he succeeded in getting the charge reduced to manslaughter—until his client’s mother started remonstrating with him for not getting her son off altogether. As he ruefully observed to his driver, “She is his mother, what else would she say?”90
He continued to travel to Cork, staying with Eavan and Ralph Sutton at their home in Sunday’s Well. The Sutton children eagerly looked forward to the arrival of their grandfather, who would always bring a bag of lollipops for them.91 Once, Isabelle Sutton, aged around four, asked what would happen if she planted one of the lollipop sticks in the ground; her grandfather told her to plant one and see. “The next morning I came rushing down, and lo and behold there was a lollipop tree growing in the garden! A tree had been literally covered in lollipops … He had a wonderful way with children.”92
Ralph Sutton took silk in March 196893 and the family subsequently moved to Dublin. After that, Sutton and his father-in-law would travel together to Cork and stay with Ralph’s mother, Una Sutton, when the High Court was there.94 As its longest-serving member, he was Father of the Munster Bar, and presided at the biannual dinners which were held on the Monday evening of the Assize week in Cork. All members were expected to attend, and a good excuse was required if the dinner was missed. Costello would speak after dinner—sometimes to admonish his brethren. For instance, he disapproved of the practice where the junior counsel in a High Court case might absent himself to appear in the Circuit Court. Costello took the view that if the client was being charged for the presence of a junior, the junior should be there.95
At the end of September 1960, Costello was the Fine Gael nominee to join Ceann Comhairle Patrick Hogan and Fianna Fáil TDS Philip Brady and Lionel Booth on a 10-day parliamentary delegation to Germany. He found the trip enjoyable and “highly informative … on the international situation”.96 They met Chancellor Konrad Adenauer, who “looked bronzed and extraordinarily well, and with no apparent signs of his age”—he was then 84.97 During a visit to the Bundestag, Costello noted that deputies were required to “clock in” each morning or pay a fine (half a century later, a similar system was introduced in the Dáil).
The TDS were treated extremely well by their hosts, not having to pay for anything. They were put up in what Costello described as “top-grade hotels”, chauffeured around in Mercedes-Benz cars, with all expenses paid. Their entertainment included dinner in the Weinhaus Bruchenkeller in Frankfurt, where “somewhat embarrassingly the Orchestra surrounded our table and then ‘discoursed’ ‘When Irish Eyes are Smiling’ and ‘Danny Boy’”. They also attended the Opera in Berlin—Richard Strauss’s Der Rosenkavalier, which Costello judged to be “magnificently produced and conducted”, although he admitted it was not one that appealed to him.
While the visit may have seemed “rather of the nature of a joy ride”, Costello concluded that there was a serious point to it, and the point was made in the city of Berlin. “I have formed the opinion that the real purpose of the invitation … was to bring home to us, and through us to the Irish Parliament, the real significance of the City of Berlin in international affairs.” While the building of the Berlin Wall would not begin until August of the following year, the emigration which precipitated that move was continuing. The Irish delegation was taken to a refugee camp where they were told that about 500 people a day were crossing the Border. They also met the Mayor of West Berlin, Willy Brandt, who according to Costello “would fill the cast of a ruthless gangster in an American film. This is not to take away in any way from his impressive appearance or his obviously dynamic personality.” He was impressed, too, by Brandt’s passionate commitment to the survival of West Berlin, which he believed was “essential to Western freedom”.
But perhaps the highlight of their trip was a visit to East Berlin, where the staunchly anti-communist Costello had a glimpse behind the Iron Curtain. Like most visitors, he was struck by the contrast between the bustling West and the drab East of the city. With few people about and even fewer cars, he observed that East Berlin “presented to me the appearance of an Irish country town on a Sunday morning”. The monument to Russian soldiers killed in the war was “rather striking”, but the park in which it was placed was “cold and forbidding”. However, as if to prove that human nature did not change, whatever the political system, their return across the Border was speeded up because “our young lady interpreter had given what is known as ‘the glad eye’ to a young Communist Policeman. She told us that she thought that was the easiest way to get through.”
Costello’s first election as a backbencher was in 1961. Perhaps because of his lower public profile, perhaps because of an attempt to split the vote with his running mate, Senator John O’Donovan, he lost his accustomed place at the head of the poll to MacEntee, who won 29 per cent of the first-preference vote, to Costello’s 25.6 per cent. Noël Browne, running as an Independent, comfortably took the third seat.98 It was, Costello later observed, “the most civilised election that has taken place in this country since the State was established … There was absent … the political excitement so beloved of political commentators …” Costello took exception to suggestions in the newspapers that the result—a minority Fianna Fáil government—was a bad one. He argued that the previous government, with its large majority, had been overbearing and arrogant. “It was practically impossible to convince certain of the Ministers … that the proposals they had put forward to the Dáil were capable of amendment. The Dáil was regarded as a machine merely for registering the decisions of the Government.” Now was the time, he suggested, for the Government to engage constructively with the Opposition.99
He was himself constructively involved in a number of measures in the justice area. In 1961, he congratulated the Parliamentary Secretary to the Minister for Justice, Charles Haughey, on the Civil Liability Bill, which he said would benefit both the legal profession and the public at large, and on the Defamation Bill, to which he gave his “complete approval”.100 He was more critical of the Succession Bill, introduced by Justice Minister Brian Lenihan in 1964, which was designed to ensure that spouses were not left out of wills. While Costello was supportive of the aim, he warned that the people were not ready for such a drastic move. “They have had this system by which they could leave their property or their money, big or small, to anybody they liked, for well over a century … there is a big task in front of him to educate the people and to make them see.”101 When the Bill was reintroduced after the 1965 election, Costello played a key role in the committee stage, where the detail of the legislation was thrashed out and changed quite substantially. Lenihan accepted many of Costello’s suggestions—at one point Michael O’Higgins, the Fine Gael spokesman, observed that he was sorry he hadn’t had his assistance earlier when dealing with another section.102 His influence on the legislation was widely recognised.103
The Government also sought his legal expertise to help with the review of the Constitution. He accepted an invitation to become a member of a group of legal experts chaired by the Attorney General which was to support the work of an all-party committee on the Constitution.104 He was in distinguished company, joining Supreme Court judges Brian Walsh and John Kenny, leading barristers Niall McCarthy, Anthony Hederman, Liam Hamilton, and Donal Barrington, as well as John Kelly, law professor and future Attorney General.105
In 1964, Costello gave legal advice to Jack McQuillan, a TD who had at times been a thorn in his side. Despite this history, Costello refused to charge a fee for his advice, a decision for which McQuillan was grateful. “Your extremely generous action … [was] something I didn’t expect or deserve … I want to say how deeply I appreciate what you have done both by giving so much of your very valuable time and attention to the preparation and conduct of my case and now by letting me off so lightly in the matter of costs.”106 However, while he won his libel case against the Roscommon Herald, it was a pyrrhic victory; he was awarded derisory damages, and the case was a contributory factor in his defeat in the 1965 election.107
In the Dáil, Costello spoke most years on the Budget, the estimate for the Department of the Taoiseach, and the estimate for the Arts Council. In discussing the latter, he stressed the practical economic benefits that could be gained through improved industrial design.108 He frequently spoke of the need to abolish death duties, and in favour of some tax relief for the self-employed, those like himself who “get no allowance, as industrialists do, for depreciation in plant and machinery. His plant and machinery are his own physical capacity, brains and skill.”109
Some developments didn’t meet with his approval; he complained of “the era of the expense account … the era of the expensive restaurant … of the motorcar of a particular type as the status symbol”.110 He produced an example in 1965 of an “expense account” lunch in a city restaurant for four people which came to £27 (the equivalent in 2010 of €556).111 “That was paid for by me and by the rest of us here in taxation and by the poor people when they buy cigarettes and drink.”112 He also stoutly defended the record of his two governments. Responding to criticism from Brian Lenihan, he said he would “allow nobody to say that either I or anybody concerned in Government with me was a reactionary”. Costello added acidly that when it came to criticising the Inter-party Governments, “neither truth nor Christian charity has any place”.113
Jack Costello remained on the progressive wing of Fine Gael. He always had a horror of the party being labelled “Tory”, and did all he could to encourage progressive elements. The chief of those progressive elements in the mid 1960s was his son Declan, who was becoming increasingly frustrated at the party’s conservatism. Declan considered leaving and joining Labour. However, fellow TD Michael O’Higgins suggested that rather than walking away, he should put his ideas before colleagues to give them a chance to accept or reject them. Declan Costello believed his father may have been behind the approach from O’Higgins;114 curiously, Jack Costello apparently didn’t discuss it directly with his son.
In any event, Declan Costello wrote to each member of the parliamentary party outlining his views, which he acknowledged were “not shared by the majority of my colleagues on the Front Bench”. He asked colleagues for “a decision as to whether or not they are acceptable to the Party and, if necessary, I will ask that a formal vote be taken”. He believed his ideas were not just right for the country, but would “have a dramatically favourable effect on the Party’s fortunes”. The principles were: full scale economic planning; targets for the private and public sectors; a Minister for Economic Affairs; government control of the credit policies of the banks; direct government investment in industry; increased social capital investment; direct rather than indirect taxation; and full and effective price control.115
His proposals—the foundation of the Just Society policy programme—were strongly supported by his father, and were endorsed by the parliamentary party (despite initial opposition from Gerard Sweetman). Jack Costello told his Garda driver he was delighted the policy had been accepted, adding that if it had been rejected “he would nearly have felt he would have to resign” from Fine Gael.116 Political scientist Peter Mair has seen in the Just Society programme “a major watershed in the general political approach” of Fine Gael, and in particular a break with the policies put forward by Costello senior.117 That was not how Jack Costello saw it; he later claimed to have had “quite a number of embryonic ideals which were not precisely articulated and they conform very much to those of the Just Society”.118 At his retirement dinner, he said he left the Dáil “satisfied that the Fine Gael party were on the right lines and walking in the right direction when they walked under the banner of the Just Society”.119
The 1965 general election was the last to be contested by both Costello and Seán MacEntee, who between them had dominated the constituency of Dublin South-East since its creation. Costello ran a reasonably high profile campaign, with ads in the Irish Timesand Irish Independent, 500 posters, 300 window stickers, and no fewer than 41,000 leaflets, at a cost of almost £300. Among the contributors to his campaign were his former Cabinet colleague Dan Morrissey, who gave the largest donation of £25, while smaller contributions were received from businessmen and legal colleagues. The balance was paid by Costello himself.120 The result was reasonably satisfactory—Costello regained his place on top of the poll, with 28 per cent of the first-preference vote, 242 ahead of MacEntee. But Fianna Fáil’s Seán Moore took the third seat from Noël Browne, running for Labour. The second Fine Gael candidate, James O’Connor, brought up the rear with less than 5 per cent of the vote.
As the 1966 presidential election approached, Fine Gael was casting about for a candidate. After two unsuccessful runs for the Áras, and now retired, Seán MacEoin had ruled himself out. Deputy leader Tom O’Higgins believed a contest was necessary to avoid a revolt among party members. He didn’t think James Dillon would be suitable, and quickly found that Seán MacBride would be utterly unacceptable to his colleagues; he finally settled on Jack Costello. “He was highly respected in the party and throughout the country and, as the leader of two Inter-party Governments, would attract considerable support from other parties.” Of course, he might be difficult to persuade, but O’Higgins decided to float the idea at a front bench meeting.
His suggestion was greeted by some nods around the table, before Gerard Sweetman intervened to shoot it down. He accused O’Higgins of following sentiment rather than practicality. “How, he asked, could we oppose, in the fiftieth anniversary of Easter Week, the oldest surviving officer of that Rising with a man who had been old enough in 1916 to have fought in the Rising and had not? He said that if we did so, we would expose John Costello to the most humiliating of defeats.” O’Higgins was “astonished and hurt” by Sweetman’s brutal intervention. Worse was to follow for him, though, as Patrick Lindsay proposed that O’Higgins should run instead. Having come to propose Jack Costello, Tom O’Higgins emerged from the meeting as Fine Gael’s presidential candidate.121
Sweetman was undoubtedly influenced by his dislike of Jack Costello; but he was probably right. O’Higgins made a very good showing in the election, precisely because he was a (relatively) young candidate who offered a fresh approach to the office. Had Costello stood, he would certainly have been attacked for his lack of a “national record”, and on that ground de Valera was unassailable.
The presidential election also prompted Garret FitzGerald, by then a senator and member of the front bench, to formally apply for membership of Fine Gael. He approached Costello to ask how he should go about doing so. “His response was, as usual, forceful, blunt and idiosyncratic. ‘Forty years in politics; twice Taoiseach; never joined Fine Gael.’ Somewhat timorously I suggested that times were changing … With apparent reluctance and perhaps with a hint of disappointment at my conventional approach to politics,” Costello gave him details of how to contact the constituency organisation.122
Within that Dublin South-East organisation, Costello was regarded with some awe—despite his personal modesty. The younger Alexis FitzGerald (nephew of Costello’s son-in-law of the same name, and later a Fine Gael TD and senator himself) recalled that when the former Taoiseach entered a constituency meeting, the members would stand up. Costello would wear his grey hat until he arrived at the top table, where he would ceremoniously remove it. As in most political organisations, there was a certain amount of infighting in Dublin South-East; Jack Costello was one of the few unifying factors in the room. Even if he really wasn’t a member of Fine Gael, Costello took the local organisation seriously enough. Whenever he had something he wished to say to a wider audience, he would either deliver a speech to a branch meeting or, if no suitable meeting was due, he would gather a group of constituency activists to his house, where he would read out his script before sending out the press release.123
The round of constituency work continued—much of it done by correspondence, though the house at Herbert Park remained a magnet for supplicants. There were “so many rather troublesome people calling at my house” that he had to insist on not seeing people unless they had a written appointment.124 The search for houses remained one of the main issues for his constituents. As he told the Dáil, he advised them, “I can help you to get into Heaven but I cannot get you a house from the Dublin Corporation.”125 He continued to insist that he represented the ordinary voter, claiming his canvassers told him “if there was a big car outside a house, they did not call because it would have been a waste of time”.126
In 1968, Jack Lynch’s government attempted once again to get rid of Proportional Representation. Liam Cosgrave had privately supported the abolition of PR in 1959—this may have been a factor in his defeat by James Dillon in the leadership election of that year. Then he was a member of the front bench; when the question resurfaced in 1968, he was party leader. He attempted to persuade the parliamentary party to his point of view with an “emotional speech” described by one TD as “possibly one of [his] worst”. Cosgrave was immediately followed by John A. Costello, who gave “a brilliant address which set the tone of the debate”.127 The parliamentary party might well have rejected Cosgrave’s approach anyway, but the force of the intervention by the former Taoiseach clearly helped.
Costello spoke forcefully and effectively in public against the proposal, which he characterised as “the government effort to resurrect the dead corpse of nine years ago”. The proposed changes were, he claimed, “objectionable in principle, unsustainable in argument, productive of injustice and designed … in the political and material interests of the members of the government and the Fianna Fáil Party”.128 Reviewing the speeches he had made on the subject in 1959, Costello confessed that he had been wrong. “On several occasions I did say … that I believed that if the people turned down these proposals, that would be the last they would ever hear of the proposal to abolish pr. I misread my friends, the Fianna Fáil party …”129 The result was much more emphatic than in 1958, with the Government’s proposal defeated by 60.8 per cent to 39.2 per cent. Once again Dublin South-East was even more opposed, voting against by 70 per cent to 30 per cent.
As his retirement from active politics approached, Costello became increasingly conscious of his place in history, and made a number of efforts to put across his side of the story. One saw him prepare a detailed memorandum on the events which led to the declaration of the Republic. This was circulated in the late 1960s to various influential figures.130 Another was a series of interviews with the political correspondent of the Irish Times, Michael McInerney, published in five parts in September 1967 under the title “John A. Costello Remembers”. McInerney described his interviewee as “impressive, with a resonant, slightly Dublin accent, of sturdy build and with a rough charm … He has a straight direct manner, without any of the charisma of a Pearse, a Griffith, or a de Valera …” The articles attracted considerable attention, not all of it positive.
Joseph Brennan, former Secretary of the Department of Finance and Governor of the Central Bank, objected to a suggestion that the Shannon hydro-electric scheme of the 1920s had “received fierce opposition from … Department of Finance officials”. Brennan rejected this claim, and urged Costello to “take proper steps immediately to withdraw it at least in so far as it may seem to concern myself”. In his reply, Costello enlarged his claim, saying he believed that Brennan had threatened resignation unless the scheme was fully examined by Finance. In a not-so-subtle threat, Costello added that he didn’t wish this to become public knowledge. Brennan demanded to know the source of his information; Costello refused to tell him. As Brennan probably guessed, the source was Patrick McGilligan, who as Minister for Industry and Commerce had defeated Finance objections to establish the scheme. In the final letter in the exchange of correspondence, Brennan repeated his criticism of Costello’s “diatribe”, adding that he particularly resented the “unfounded suggestion” that he had threatened resignation.131
As well as annoying former mandarins, Costello also helped a number of academics in groundbreaking research into Irish history and political development—David Harkness on the evolution of the Commonwealth, A.S. Cohan on the development of the Irish political elite, Brian Farrell on the role of the Taoiseach.132 One researcher, looking at the office of the Attorney General, found him to be “a garrulous and entertaining man”,133 and this certainly comes across in one of his most important attempts to give his view of his career, a “Seven Days” television interview with David Thornley.
Costello was reluctant to do the interview, insisting that the programme’s editor, Muiris Mac Conghail, come in to Leinster House so he could meet him. After 12 years in opposition, Fine Gael regarded RTÉ with suspicion, believing the station to be under the political influence of Fianna Fáil. Mac Conghail found the former Taoiseach “gruff”, but evidently satisfied his concerns. The fact that the interview was to be conducted by Thornley was part of the attraction—he was highly regarded as a serious broadcaster. Apart from the historical interest of covering controversial topics like the declaration of the Republic and the Mother and Child scheme, Mac Conghail believed the interview could have contemporary political significance. Fianna Fáil had succeeded in “making ‘coalition’ a dirty word”. He thought Costello, as the only head of a coalition government up to that point, might give a different view of the possibility of inter-party co-operation.
The interview was recorded before the 1969 election, but broadcast on 24 June, one week after polling. As it happened, Fianna Fáil had an overall majority, but had coalition been an option, the interview might have been influential in the process of Government formation.134 Speaking before the results were known, Costello warned that if a second general election was caused by a refusal to co-operate in coalition formation, “the people would take a fierce vengeance on any party that doesn’t carry out their will”.135
By the time the interview was broadcast, Costello had left the Dáil and Thornley entered it (as a Labour Party TD). Costello, who had no experience of television, was uncomfortable, but with Thornley’s expert guidance delivered a vintage performance. The encounter admirably demonstrated his belligerence when challenged on controversial episodes like the declaration of the Republic and the Mother and Child crisis. He and Mac Conghail became friendly as a result of the interview—Costello was later godfather to Marcus Mac Conghail.136
In March 1969, with a general election on the horizon, constituency activist Tony Keane had written to Costello “to request the honour of again proposing your name for adoption as a candidate. Needless to say we will do all in our power to ensure your rightful place at the head of the poll …” However, the prospective candidate, just three months short of his seventy-eighth birthday, turned down the offer. “I think it would be a very bad headline for one of my age to put himself forward. It is a matter of very great regret that I must cease to be a Deputy for the Constituency which has done me the honour of electing me so consistently and for so long … I assume of course that Senator [Garret] FitzGerald will be put forward and accepted as my successor.”137
Fittingly, his final contributions in the Dáil were on a controversial Criminal Justice Bill. Costello declared himself to be against anything which prevented the right to free speech and free assembly. “We should not erode those principles and constitutional rights unless the public interest imperatively demands it.” The final words he spoke in Leinster House were a warning that giving Gardaí the proposed extra powers would bring the force into disrepute “by reason of the fact that the people will not trust them and will be afraid of them. That would be a bad day’s work for this House to do.”138
At the selection convention for Dublin South-East at which he formally announced his retirement from politics (and which chose Garret FitzGerald and Fergus O’Brien as the Fine Gael candidates in the constituency), Costello made a lengthy speech. Acknowledging that co-operation between Fine Gael and Labour in Government didn’t seem possible at that time, he observed that “this should not always be so”. Coalitions were the norm in other countries using proportional representation, and the people had proved they wanted to retain PR. Through that system, they could choose a single-party government, or they could indicate that they wanted parties to co-operate. In a clear warning to the anti-coalitionists in Labour, he added, “The party which fails to heed the people’s voice will do so at its peril.”139
Costello also used this “farewell speech” to take a cut at Fianna Fáil. He claimed the Government was not just “bankrupt of ideas”, it was “arrogant, divisive and harmful”. He continued, “the Taoiseach has the unenviable task of trying to impose a code of conduct on his colleagues which is contrary to the traditions of his party, and which they do not understand. It is little wonder that he has failed. A party which has ruled as long as Fianna Fáil has may come to feel that it does so by divine right.”140 The Taoiseach, Jack Lynch, responded in a speech to a Fianna Fáil convention in Mallow a month later. It wasn’t his party that didn’t understand, he said—it was Fine Gael. “They have not understood for almost 50 years … that is why Fine Gael have such a record in Opposition—a record unrivalled almost in any Western democracy.” He advanced the intriguing argument that by criticising Fianna Fáil, John A. Costello was in effect criticising the Irish people, who had voted for them. Lynch challenged Costello to prove his claim that businessmen viewed a subscription to Fianna Fáil as a good investment, and in turn criticised the record of the two Inter-party Governments. He concluded with the hope that “we might all be able to conduct this general election campaign on a higher and on a more responsible level”.141
He may have been leaving the stage, but Costello obviously retained the ability to needle his opponents. He also played an active role in the election campaign in Dublin South-East. The younger Alexis FitzGerald was director of elections in the constituency. As a courtesy, he brought Garret FitzGerald’s proposed election address to show Costello. The former Taoiseach took out a pen and started crossing bits out and adding amendments. Sadly, these were completely illegible, even to their author.142 Of more benefit were his speeches, which stressed Fine Gael’s emergence as “the party of national reform, of liberal belief and social and economic progress. It has through time developed into a party espousing the belief in social justice which I have throughout my career stood for.” His support for “the doctrines of the just society” was of course particularly useful for FitzGerald, given his pronounced liberal views. Costello also observed that developing policy in opposition was “no good … when the people are hungry for action in government now”. He again criticised Labour’s refusal to contemplate coalition. They were “caught in a mesh of socialist theorising”, but would be forced to abandon this untenable position following the election.143
Dublin South-East was clearly in safe hands; his chosen successor topped the poll with 31.5 per cent of the first preference vote; Noël Browne (again running for Labour) was second and Fianna Fáil’s Seán Moore, the only sitting TD contesting the election, came in third. Costello also campaigned for another FitzGerald, his son-in-law Alexis, who contested the Seanad election. Alexis asked him to write to a local councillor “saying, if you had a mind to, some nice things about me … Sorry to bother you with this but there is no point in going in to the sea if you don’t intend to swim and I find in me daily increase in ruthlessness.”144 The letter—saying very nice things indeed—was sent and Alexis was duly elected.
A gala presentation evening for Costello, put on by his constituency organisation in December 1969, illustrated the breadth of his career. No fewer than six speakers were required to cover the various facets of his life—Liam Cosgrave on the parliamentarian; Garret FitzGerald on his contribution to the foundation of the State; Tom O’Higgins on the Taoiseach and leader of the opposition; Tommy Doyle on the constituency campaigner; and Alexis FitzGerald on his contribution to Fine Gael. But the main event, undoubtedly, was the speech by Costello himself. He noted at the beginning that in his reply to a similar presentation, Seán Lemass had spoken for just two minutes; he said his reply, by contrast, “is going to last I’m afraid for a long time”. He wasn’t joking—his speech went on for no less than 51 minutes.
After covering his lengthy career in public life and paying tribute to many who had helped him along the way, he urged his audience to remember the achievements of the Inter-party Governments. “It’s worth talking about, because we did something that hasn’t been done since.” And he urged the party to believe that Fianna Fáil could be beaten. “You can beat it if you go the right way about it … I suggest to you, put upon your banners the Just Society, that Fine Gael is not a Tory party … it’s for all sections of the Irish people, but particularly for the poor and the weak and the distressed.”145
One piece of unfinished business which occupied Costello’s time was the Mansion House Anti-Partition Fund. Just under £55,000 had been donated in 1949, but not all had been spent. The remainder of the fund, invested in Government loans, increased from £4,900 at the end of 1964 to £7,700 a decade later. It was difficult to get all the members of the committee (Costello, Norton, MacBride, de Valera and Aiken) to agree on any course of action. Costello was clear—he wanted the Fund wound up. In August 1961, after some press comment about the fund, he wrote to the other members saying no useful purpose would be served by leaving the money unallocated. He believed it should be “expended for some anti-Partition purpose and the nature of that would have to be carefully considered”.146 Both de Valera and MacBride agreed that the money should be used147 but nothing happened, possibly because the 1961 general election distracted the committee members.
Bill Norton’s death in December 1963 further complicated the situation; now the surviving committee members had lost the power to direct the trustees to pay out funds. The Attorney General and the Secretary of the Department of the Taoiseach suggested legislation to clarify the membership so the money could be paid out and the Fund wound up. Costello suggested a simpler solution: the committee should assume it had the power to co-opt Brendan Corish in Norton’s place, and then disburse the funds and dissolve.148
Again, nothing was done. In November 1968, the committee met in Áras an Uachtaráin—apparently the first meeting since 1955. It met again in December 1969, at the request of Seán MacBride, to “take stock of the position … in the light of recent developments” (the outbreak of the Troubles). Costello supported the idea of holding a meeting. “I feel that we might be the subject of criticism if, having regard to the happenings in the North, we did not have a meeting … It may be eventually decided that no action is called for but at least it could not be said that the Committee had not considered the position.”149 This meeting was again inconclusive, although in October 1971 the committee agreed to pay £500 to Father Brian Brady of Belfast to support a legal challenge to internment. It was also decided to pay for the production of two pamphlets outlining the case against partition, and the events leading up to the outbreak of violence in the North.150 A note on the file in November 1974 stated that the preparation of the pamphlets had not been “pursued to fruition”, and the committee hadn’t met since.151 Thus ended Costello’s Northern initiative of 1949.
He remained an unapologetic and convinced nationalist, but also remained utterly opposed to the IRA. He was realistic about the situation—arguably more realistic than he had been when in power. In April 1972, after the parliament of Northern Ireland was prorogued and direct rule instituted, Seán MacEoin put forward the ingenious theory that the British Government had acted illegally. Under the Treaty, he argued, the Six Counties had the right to opt out of the All-Ireland Parliament, but not to return to direct rule by Westminster. He told Fine Gael leader Liam Cosgrave that the Government should apply to the International Court of Justice to have the relevant British Act declared illegal. Cosgrave turned to the most eminent legal adviser he could think of, Jack Costello. The former Taoiseach said the Treaty, as an international agreement, could only be regarded as binding while it was in operation; but, as he had pointed out when declaring the Republic, it had been dismantled by the Fianna Fáil government after 1932. “Because the British acquiesced in these fundamental breaches of the Treaty and because the Executive Authority (External Relations) Act 1936 did nothing to keep this country within the Commonwealth of Nations, even though the British pretended it did, the resultant position was that the Treaty no longer had any effect … the Republic of Ireland Act 1948 put the issue beyond all doubt.”152
The following August, Costello was chosen to deliver the main oration at the Michael Collins commemoration at Béal na mBláth. As well as being the fiftieth anniversary of Collins’s death, the ceremony was also notable for the presence of the Minister for Defence, for the first time under a Fianna Fáil government. The Minister, Jerry Cronin, received “a surprisingly enthusiastic reception” according to the Irish Times, but “his welcome was pale compared to the thunderous applause” which greeted Costello.153
The former Taoiseach reflected on the progress made under an independent Irish government, remarking that “if everything has not been achieved, much has been achieved and it has been achieved through our own efforts and from our own resources and without our hands out to the British taxpayer”. But the main thrust of his speech dealt, naturally, with partition and the use of force. He observed that there was only one legitimate army of the Republic of Ireland, the one founded by Collins. And he said that while the unity of the nation was “an article of our national faith” for Collins, the General was above all else a realist. “He knew the tactic of the limited objective, the deluding, narcissistic folly of extremism. He knew when force was legitimate and that it was immoral and illegitimate when employed against greater force and when the design did not include the … objective of lasting peace based on the mutual recognition of community rights … He wished to convert our northern fellow countrymen and not to coerce them.”
This was not strictly accurate, given the plans Collins at one point pursued for armed attacks on the infant Northern state, but it was what the crowd wanted to hear. Costello was on safer ground when he returned to his own views on the North. He pointed out that the British people had a “serious responsibility” because their governments created the problem, and said no settlement could ignore the “just rights” of Northern Catholics. The eventual solution would require, he said, “idealism, patience, tolerance and a supreme exercise of the virtues of Christian charity”. And, in a superb phrase directed squarely at those who supported violence in the cause of unity, he said “even Irish unity may be bought at too great a price if bought at the price of sin and shame”.154
As an elder statesman in both politics and the Bar, he received many honours in his later years. His seventieth birthday brought congratulations from the Fine Gael parliamentary party, from President de Valera, and from Justice Brian Walsh, who observed that “in your case it is clear that the biblical three score and ten falls far short of the value of the case”.155 His golden jubilee at the Bar in 1964 was marked by a celebration in the Central Hotel,156 while 10 years later both the then Taoiseach, Liam Cosgrave, and his predecessor (and successor) Jack Lynch attended a diamond jubilee event in the King’s Inns, where a “huge attendance showed the esteem in which John A. Costello was held”.157 In 1962, he received from the Pope the Grand Cross of the Order of Pius,158 a papal knighthood which is one of the highest honours bestowed by the Vatican.159
He didn’t forget old friends, putting in a determined but unsuccessful effort to have Cecil Lavery appointed Chief Justice. He explained to the Taoiseach, Seán Lemass, that Lavery had “selflessly” declined a chance to be appointed President of the High Court by Costello’s government, because of a technical point raised by the Department of Justice. “I myself felt that there was no substance to the point and that Mr Justice Lavery ought to accept the position … The matter has troubled me very considerably ever since as I felt Judge Lavery had suffered an injustice … He is, as you doubtless know, the outstanding legal personality of the last half-century in this country.” Costello piously added that he had “never interfered in any way with any judicial appointment, nor endeavoured to influence it, except when it fell to my duty as a member of the government to do so”. He did his best in this case, though, lobbying Cardinal D’Alton and Fianna Fáil minister Jack Lynch (through their mutual friend, the Fine Gael TD from Cork, Stephen Barrett).160After the failure of this effort, he was involved in an equally unsuccessful attempt to have Lavery elected to the United Nations International Court of Justice.161
Old rivals weren’t forgotten either. As a former Taoiseach, Costello was a member of the Council of State, and in that context continued to have dealings with Eamon de Valera, who remained President of Ireland until 1973. Declan Costello recalled that while they were polite on a personal level, they did not have a particularly warm relationship,162 which is understandable in the context of their political dealings over many years.
Against this, some in the Costello family remember a friendlier relationship. One of Costello’s grandchildren recalls picking up the phone one day to hear the President on the other end of the line, ringing with an invitation to a Council of State meeting. The two men “chatted amiably” for some time.163 There is even a suggestion—apparently emanating from the de Valera family—that the President used to call into Herbert Park for a cup of tea and a chat on occasion. It seems unlikely that civility went quite that far, although they certainly appeared to get on well at their last public appearance together, at the joint conferral of the Freedom of Dublin on them in March 1975, just five months before de Valera’s death and 10 months before Costello’s.
In his speech at the Freedom ceremony, the Lord Mayor, James O’Keeffe, said that de Valera and Costello were “without question the two most famous Irish statesmen alive today”. While de Valera made a very brief reply of thanks, Costello was characteristically more verbose, recalling that he was Dublin born, but didn’t have enough ancestry to be a “jackeen”. He mentioned his father’s service as a councillor, and his own work with the Corporation to get houses for his constituents. Costello observed that his fellow freeman did not like lawyers—but the profession had turned the tables on him while he was President by making him an Honorary Bencher of the King’s Inns. “We fought many a fight, but I can say that never once did I hear him utter a single ungracious word or expletive about me. I received nothing but courtesy from him at all times.”164
But despite this public conviviality, there was a reserve on Costello’s part. In September 1970, he turned down a request to discuss Longford and O’Neill’s biography of de Valera on RTÉ. “I have formed the very definite view that it would be quite inappropriate for me in all the circumstances to make any public comment. I may say that I have also turned down a request to review another biography of the same person.”165 Perhaps unfortunately, he did not keep his counsel in the immediate aftermath of de Valera’s death in August 1975. Interviewed on television within hours of the former President’s passing, Costello said “his influence was widespread in his life. I think his influence is now at an end. In my opinion he left nothing of permanent value.”166 The British Embassy noted that “virtually the only good thing he could say about Mr de Valera was the back-handed compliment that he had ‘slavishly’ adopted the parliamentary customs of Westminster”.167
The remarks led to considerable public controversy, and were regarded as “disparaging” by the de Valera family.168 Various explanations were offered: Tom Finlay, former Fine Gael TD and future Chief Justice, went to the funeral with Costello, who he said had a “fair hostility” towards his former rival. He felt the “rather dismissive” remarks on television were probably due to the fact that he hadn’t had time to think of what he might diplomatically say.169 De Valera’s son Terry suggested that “the lawyer in him came out and he was simply speaking to what he regarded as his brief”.170 The truth is probably simpler. Jack Costello was asked a question, and gave his views honestly. It may not have been diplomatic, but it was a characteristic response.
In a newspaper interview in 1974, Costello said he was a “perfectly” happy man; the worst thing about his life was “that so many of my dear friends are dead and I am still here”. His only pastime, apart from golf, was reading; the rest of his time was spent with his family, especially his 19 grandchildren.171 Those grandchildren have fond memories of him, of the trips in the State car (even though it made some of them carsick), the half-crown coins he dispensed, and the gifts of Turkish Delight he would bring back from his trips to Cork.172 One Christmas Eve, as he took a number of them round the shops, he remarked to his Garda driver that Seán MacEntee used to refer to him as “the nursemaid of Labour and Clann na Poblachta”; now here he was, acting as nursemaid to all his grandchildren.173 For family occasions such as Communions and Confirmations, he would throw a big party in Herbert Park, and also had a Hallowe’en party for the grandchildren every year, as well as an afternoon party on his birthday.174
Grandchildren were frequently in and out of Herbert Park—Alexis and Grace’s son Kyran stayed on and off in the house, partly to keep his grandfather company. Legal colleagues joked that the former Taoiseach had become an authority on a particular cowboy series on the television because his grandson kept putting it on.175 He helped with the homework of any children staying in Herbert Park, but to the disappointment of at least some of them he declined to discuss his role in various historical events. He didn’t want to “rake over the coals” of past controversies, although he did have a few favourite jokes, such as his assertion that he had been “out” in 1916—out on the golf course.176 One granddaughter remembers spending hours in his study, “swinging around in his swivel chair, messing with his Dictaphone machine and trying on his wig”. His influence was lasting—10 of his 19 grandchildren became either barristers or solicitors (although only one, Isabelle Sutton, entered politics—she was elected twice to Kinsale Town Council for the Green Party).177
He had well-entrenched habits: rising at 7.30, breakfast of bacon and eggs with freshly squeezed orange juice, then out of the house by 9 during the Law Term, for daily Mass in Donnybrook Church or in the Church of Adam and Eve on the quays on his way to the Four Courts. He would usually come home for lunch—he was an “avid” listener to the BBC “World at One” programme on radio.178 In those days, Dublin traffic was much lighter, and it was possible for his driver to collect him at the Four Courts at 1.10, bring him home for lunch and drop him off again at 1.50.179
The two Garda drivers, Mick Kilkenny and Jack Christal (who succeeded Paddy Byrne in 1968), along with housekeeper Molly Ennis, formed “a small, very happy family” with the former Taoiseach. He included them along with the family in various celebrations (for instance, a seventy-seventh birthday dinner in the Burlington Hotel, or the celebrations after he was made a Freeman of Dublin) and was “generous and decent”.180 He remained addicted to golf, continuing to play well into his eighties, greatly enjoying the game (though his grandson remembers his progress round the course being punctuated by quiet grumbling about the quality of his shots).181
As well as going to the golf club and the King’s Inns, he socialised at home, with dinner parties which featured Molly’s excellent cooking, and legal and political reminiscences. The former Taoiseach drank wine, but very much in moderation, and the parties were quite traditional, with the ladies withdrawing after dinner, at which point the port would be produced for the men. When eating out, he was particular about the lights in the restaurant not being too dim, as he wanted to see what he was eating. He also disliked having his plate over-filled—if it was, he would send it back, asking for some of the food to be removed. And he hated picnics at the beach, as he didn’t like sand in his food.182
At the weekends, Wilfrid, by then a permanent patient at St Patrick’s Hospital, would come home to Herbert Park, making his own way there and being dropped home by one of his father’s drivers on the Sunday evening. Wilfrid’s care remained of huge concern to Costello for the remainder of his life—his eldest son was to die three years after him in 1979, of congestive heart failure.183 On his visits home to Herbert Park, Wilfrid enjoyed playing his old 78 records up in his room; on Sunday evenings, the two of them would go to Grace and Alexis’ house for supper.184 Tragically, in 1972, Grace died of cancer at the age of just 50. The loss of his eldest daughter, the “apple of his eye”, was a shocking blow to Jack Costello. Apparently he hadn’t realised quite how sick she was when she was admitted to Saint Luke’s cancer hospital.185
He was perplexed by some aspects of the modern world—for instance, he acted for a supermarket objecting to the rule that butchers’ shops in Dublin should close at six o’clock. The supermarket didn’t want to have to close its butcher counter at 6 while the rest of the shop remained open. But Costello had difficulty with the idea of having one shop inside another, having never been in a supermarket.186 Costello remained a traditionalist on moral matters—when one of his grandsons (aged about 12) argued in favour of the importation of contraceptives, he became quite irate.187 He was also a traditionalist on legal matters, opposing the suggested fusion of the two branches of the law. He believed that an independent Bar served the interests of justice, because it allowed the opposing parties, whatever their status or wealth, to be represented by counsel, and thus equalised before the Bar of the court.188 In a newspaper interview to mark his sixtieth anniversary at the Bar, he stoutly defended the profession, describing it as “so completely independent that it is the greatest safeguard the public has against pressures from the State, big business or other sources. It is able to take up the cudgels in any fight.”189
In those days, with no pension scheme at the Bar, retirement was not really an option for most barristers—in any case, Jack Costello would certainly have missed the activity.190 But he remained sharp and alert into his eighties. In January 1975—when he was 83—he was lead counsel for Tara Mines in a complicated action in the Supreme Court involving the then Minister for Industry and Commerce, Justin Keating. The company was demanding an oral hearing on a particular issue, which it believed the Minister was anxious to avoid. One of the judges asked Costello how long such a hearing would take; he replied that it would be about forty days. “Forty days in the desert, Mr Costello?” “Yes, my lord, and no manna from heaven for the Minister.” During the next recess, fellow counsel Kevin Liston commented on the alacrity of that exchange—and observed that none of the five judges had even been born when Costello was called to the Bar in 1914.191
Another prominent brief was at the moneylending tribunal, set up in December 1969 to inquire into an RTÉ television programme on that subject. The Government viewed the “Seven Days” programme as sensationalist and misleading; the RTÉ authority stood over it. The motion establishing the tribunal called for an inquiry into “the authenticity of the programme and, in particular, the adequacy of the information on which the programme was based and whether or not the statements, comments and implications of the programme … amounted to a correct and fair representation of the facts”.192 As the current affairs magazine Hibernia noted, “if the Government was seriously concerned about money lending, the terms of reference of this enquiry would be very different indeed”.193
Muiris Mac Conghail, the editor of “Seven Days”, came to the same conclusion. He believed the Government was determined to clip the wings of RTÉ in general and “Seven Days” in particular. “It was the OK Corral—Fianna Fáil were not going to let me away with it.” As the opening of the tribunal drew near, he received, out of the blue, a phone call from Alexis FitzGerald, who advised him that at some stage the interests of the programme team and those of the RTÉ authority would diverge. For that reason, “Seven Days” needed separate legal representation. Given the political context, FitzGerald felt he as a Fine Gael senator couldn’t act as solicitor for them.194
If “Seven Days” couldn’t have a Fine Gael politician as solicitor, it could have a former Fine Gael Taoiseach as lead barrister. John A. Costello was briefed to lead the “Seven Days” legal team, and made quite an impression during the 51 days the tribunal sat. “Dominating the daunting front row of the all-star legal line-up is the awe-inspiring figure of John A. Costello … At 78 years of age, incredibly sprightly and endowed with immense intellectual acuity and drive, he is said to be working regularly into the early hours of the morning on the case. It could well be a fine and fitting climax to his career.”195
Mac Conghail was impressed with Costello’s physical fitness and mental sharpness, and wondered how he maintained his “baby faced glow”. He kept a meticulous record of everything that was said, and could summarise the evidence of any witness after a quick look at his notes. He guided the “very young and very nervous” members of the programme team through their evidence, outlining the likely questions they would face. Costello also had the advantage of remembering how the Locke’s Tribunal had worked, which was an advantage in the lengthy procedural wrangles which dominated the opening days. According to Mac Conghail, the members of the tribunal and the other barristers were “extremely rude” to the former Taoiseach, but Costello never responded to them. He was there to see that fair play was done; in Mac Conghail’s view, he was “somewhat naïve in not understanding that the Tribunal was a political hatchet job”.196
Predictably, the tribunal report was satisfactory for the Government. While it found that the programme-makers honestly believed that moneylending was widespread and violent, it said they failed to adequately check out sources. “The programme was found not to be authentic either in relation to the scale of the illegal money lending or in relation to associated violence.”197 The Attorney General, Colm Condon, subsequently rejected a recommendation from the Chief State Solicitor that the State should pay £7,500 of the “Seven Days” legal costs (it was recommended that RTÉ should be paid £13,500). Condon could “see no reason why any sum should be paid by the State in relation to the Seven Days team, nor did I at any stage see any reason why they should have been thought to require separate representation”.198
In 1973, as the prospect of a new coalition between Fine Gael and Labour emerged and then became a reality, Costello’s views were sought by the media. Like him, Liam Cosgrave found himself at the head of a coalition government after 16 years of Fianna Fáil rule. Costello said coalitions could be just as stable as single-party governments “provided you have good will and provided you have people … of integrity and of courage and of persistent hope and belief in the country”. Asked if he thought Cosgrave faced any real problems, he replied in typically direct fashion, “I do not.”199 In particular, he pointed out that Cosgrave only had to worry about two parties, and “to that extent his difficulties are enormously lessened from what I had to face in both Cabinets”.200
However, while he was supportive of the new government, he was annoyed that Declan, after his contribution to the party over the years, was appointed Attorney General rather than being made a minister. The appointment was regarded by the liberal wing of Fine Gael as an attempt to contain his influence.201 Declan Costello was disappointed; Jack Costello was furious. The younger Alexis FitzGerald, walking towards Leinster House, was offered a lift in the former Taoiseach’s official car. On asking Costello how he was, he was told, “Terrible. Did you hear what they’re making Declan?”202 He also made his displeasure known to his friend Muiris Mac Conghail, who had been appointed Government Press Secretary by Cosgrave.203
By now he was not just a grandfather, but a great-grandfather. His great-granddaughter, Katie Armstrong, remembers a Ladybird book about puppies and kittens which he gave her. Her brother, Frank, was brought at six weeks old to meet his great-grandfather shortly before Costello died.204
As he got older, Costello had the usual run of illnesses, including a bad case of shingles in 1966.205 But given his lifelong addiction to nicotine, his health was relatively robust. Eventually, he gave up smoking cigarettes and took up “evil-smelling” cheroots instead.206 The cheroots may not have been quite as dangerous, but long-term smoking generally only has one result. Around the middle of 1975 he became ill. What was originally thought to be a chest infection turned out to be lung cancer.207 During the summer law vacation he began to fail rapidly. At the Mass in St Michan’s opening the Autumn Law Term that year many colleagues, shocked at his appearance, asked his Garda driver what was wrong with him.208
He went to Cork on circuit for the last time in October 1975—it was more of a token visit, as he didn’t have much work on. While his visits to the Law Library became less frequent, he continued going to Mass in Donnybrook every day. Towards the end, he had to be helped up to Communion by one of his drivers.209 He approached illness with his customary determination, insisting on coming down the stairs for breakfast no matter how ill he felt, with the help of his housekeeper Molly Ennis. Her devotion at this time was credited by some in the family for keeping him going.210
(Outside of family, she was the biggest beneficiary of his will, receiving a bequest of £1,000, as well as being allowed to live in the house in Herbert Park until she secured a new position. The will, drawn up in February 1975, also remembered his two drivers, various nieces and nephews, the Saint Vincent de Paul and the Bar Benevolent Society, all of whom received £100 each. Ita McCoy was left £500, and Costello’s typewriter. The remainder of his estate, which was valued at £90,564.74 (just under €700,000 at 2010 prices)211, was divided into five, one part each for Declan, John and Eavan, one fifth held in trust for Wilfrid, and the final fifth divided among Grace’s children.212)
His final illness was well known in legal circles. When Frederick Budd retired from the Supreme Court just before Christmas, he “expressed regret that his old colleague, Mr John A. Costello SC, was unable to be present and he wished him a speedy recovery to good health”.213 The end came suddenly. He was visited by the senior curate of Donnybrook parish on the evening of 5 January. There was no particular anxiety about his condition at the time, but the priest asked him if he would like to receive Holy Communion. “There is nothing that I would wish for better,” Costello replied. One hour after receiving Communion, he was dead.214
There were many tributes. The Taoiseach, Liam Cosgrave, described him as “a true Christian gentleman”; Garret FitzGerald, then Minister for Foreign Affairs, said he was “unique in his loyalty, his vigour, his candour and his uncompromising honesty”; Tom Finlay, President of the High Court, said “he set in effect the standards of integrity and conduct for the Irish Bar probably for the last forty years or more”.215 British Prime Minister Harold Wilson wrote to Cosgrave recalling his contacts with Costello, most recently sitting beside him at a lunch in Dublin. “I know of the high respect in which he was held in the Irish Republic and among Irishmen everywhere, both as an eminent constitutional lawyer and as an upright and humane statesman and patriot.” US President Gerald Ford said Americans would remember Costello “as a man of peace, as a statesman, and as a man dedicated to the rule of law”.216
As a former Taoiseach, Costello was entitled to a State funeral, but the family declined the offer. It was, as an editorial in the Irish Independent pointed out, “entirely in keeping with the outlook of the late Mr John A. Costello … In his private, political and legal life he was always the retiring man who never sought, although he often found himself in, the limelight.”217 The church in Donnybrook was packed for the funeral. A minor protocol problem arose because ministers were seated before members of the Diplomatic Corps, but a commonsense solution was found by mixing diplomats and members of the Government in the first four rows.218 It was not, of course, the first time that Costello had ruffled diplomatic feathers. The homily was delivered by the parish priest, Bishop Joseph Carroll,219 who paid tribute to Costello as a parishioner, as someone with an “unusually strong” sense of belonging to the parish community. “One of the most moving of our experiences here in the parish during the last few months, when his health began to fail seriously, was to see this distinguished man, so humbly making his way, with considerable difficulty, to the altar rails to receive Our Lord in Holy Communion.”220
A week after his death, the legal profession paid its own tribute at the opening of the Hilary law term. The Supreme Court was crowded with judges, barristers and solicitors, the judges of the High as well as the Supreme Court assembled on the bench, and the Attorney General, Declan Costello, taking his place as leader of the Bar. The Chief Justice, Tom O’Higgins, a former Cabinet colleague of John A. Costello, said that many tributes had been paid over the past week to their former colleague; this was an opportunity to salute him as a barrister. He said Costello had in abundance the skills needed by a barrister—not only knowledge but wisdom and experience, not only rhetoric and skill but shrewdness, not only a quickness to appreciate facts but also a patience to discover the essential detail.
O’Higgins continued, “But he brought more—in addition to his natural talents and immense abilities went a sense of honour and an integrity which was unrivalled, an unassuming simplicity which caused him to shun the plaudits which his prowess evoked and in those cases where he felt that his client had been harshly treated or unfairly put upon, such a burning searing conviction of what ought to be or have been, that all opposition tended to crumble and disintegrate. He had no second best. For those for whom he appeared—the highest or the lowest in the land, those with vast riches and those with no means whatsoever—there was only one quality of service which he could give and that was the best he had it in him to give … In this long period at the Irish Bar … despite the demands of an enormous practice, despite the multiple other activities in which he was engaged, John Costello remained, essentially, unassuming and approachable—one to whose seat in the library any colleague could go knowing that he would get not only valued advice but also kindness, consideration and respect.”
One of those colleagues spoke next. Francis Murphy, chairman of the Bar Council, paid a heartfelt tribute to Costello’s devotion to the profession. “Of him, as a man and as a barrister, truly it could be said that he fought the good fight and … by any standard by which he may be judged, it was agreed that not only did he fight the good fight but that he won.”221