Chapter 3  

HE HAS DONE WONDERFUL WORK

“The Evening Mail … stated that I had become Attorney General by a strange concatenation of fortuitous circumstances.”¹

JOHN A. COSTELLO, 1969

“John A. Costello came to see me and tell me of developments. He has done wonderful work. I know no one else who could have even tackled the job.”²

HUGH KENNEDY, 1929

When W.T. Cosgrave retired from politics in 1944, he wrote to John A. Costello thanking him for his service as Attorney General, saying that he had never been wrong in the advice he gave.³ This tribute echoes the glowing comments of Hugh Kennedy quoted above, and contrasts with the rather lukewarm reaction of the Evening Mail to his appointment. But as with other phases of his life—at school, UCD and the Bar—Costello showed critics that by dint of hard work and a certain element of luck, he could succeed in a new role. The luck was once again to be in the right place at the right time and with the right contacts, in this case Hugh Kennedy.

In May 1922, Kennedy, Law Officer of the Provisional Government, was under pressure. He was faced with an “immense volume of work … files from all Ministries and Departments … not only with questions of Law and procedure, but also requiring the drafting of documents, letters, etc. I have been attempting to deal with all these single handed but it is quite impossible that I should do so efficiently.” The solution, he suggested to the Minister for Home Affairs, Kevin O’Higgins, was the appointment of a junior counsel who could do some of the time-consuming tasks for him. Kennedy thought the appointment should be for a period of six months “to carry us over the enormous work of the initial stages”.⁴ This was to be John A. Costello’s route into Government service, and he acknowledged it was due to his friendship with Kennedy.⁵

Costello later expressed pride at being appointed by a Government made up of prominent figures from the War of Independence, especially as he was “without what was then known as a National Record. I never died for Ireland, and don’t intend dying for Ireland!”⁶ Given his admitted lack of a “National Record”, his promotion was open to criticism. Half a century later, interviewer David Thornley suggested that “people like yourself, typical of the Law Library, the professions, the bureaucracy, from 1922 on took over the fruits of what had been won violently without their having helped”. Costello replied, “That is so, that’s a fair comment …”⁷

He was not alone. John M. Regan has argued that Kevin O’Higgins deliberately worked to bring into Government members of the Catholic nationalist elite who had been swept aside by the War of Independence. The appointment of John Marcus O’Sullivan as Minister for Education in 1926 marked a watershed as “there were now more non-combative Clongownians in the Cabinet than veterans of the 1916 Rising”.⁸ While not a Clongownian, Costello was certainly a non-combatant, and his rise can be seen as part of a wider process.

Costello described Kennedy’s job as Law Officer as very difficult, “because at that time nobody knew what the law was … when the transfer of functions from the British to the Irish was started …”.⁹ So enormous was the task, in fact, that Costello was initially only the Second Assistant to Kennedy—Kevin O’Shiel, former Land Court judge, was the First.¹⁰ Kennedy had sketched out the tasks he wanted performed by his new assistants in his letter to O’Higgins. “Many legal questions involve the hunting up and collation of Statutes and decisions, which often take a considerable amount of time. The drafting of documents in itself is a tedious process, and I think that you will agree that the only satisfactory way to do this class of work is to have the collection of materials and the rough drafting done by someone competent to do it, and then submit it for revision and final settlement by me.”¹¹

Costello later described himself as “working in a very unobtrusive and humble fashion”,¹² but the range of issues he dealt with was wide. In October 1922 he provided opinions on exhumation and on Commissions of Inquiry, while in February 1923 he wrote about extradition, theatre patents, and illegal trawling.¹³ A typical example of the sort of tedious work Kennedy wanted done related to the appointment of a stockbroker to the courts. The Lord Chief Justice, Thomas Molony, was claiming the right to make the appointment, and Kennedy asked Costello to find out whether such a post existed, who should make the appointment, and whether it should be made or at least approved by the Minister for Home Affairs.¹⁴ A lengthy opinion from Costello informed Kennedy that the Lord Chief Justice did appear to have the right to make the appointment, and there was no basis on which the Minister for Home Affairs could establish a claim to make it—although, as he pointed out, the position had no salary or pension attached, and simply amounted to an indication that the appointee might receive “a certain proportion” of the stock exchange business connected with the courts.¹⁵

More substantial issues were raised by a Public Meetings Bill proposed by Kevin O’Higgins. According to the Department of Home Affairs, “very considerable inconvenience and loss have been caused to business people in Dublin by reason of the continued dislocation of traffic on account of meetings”.¹⁶ The Bill proposed a ban on public meetings unless permission had previously been given by the authorities.¹⁷ Kennedy, however, expressed concern about the proposed Bill to O’Higgins, pointing out that it aimed to regulate an existing right of public meeting, but that no such right existed, while it was silent on the right of assembly in procession, and seemed to assume the right of meeting in private buildings for any purpose whatever.¹⁸ The Executive Council agreed to the circulation of a 23-page memorandum on the Bill by Costello.¹⁹

The Legal Assistant argued that while people had a right to free expression of opinion and to free assembly under Article 9 of the Free State Constitution, there was no right to meet where and when they wanted, to meet on highways, or to enter private property. “The right must be exercised with due regard to the rights both of private individuals and those of the general public.”²⁰ Kennedy noted that the memorandum “has confirmed the principles and views expressed by me … I am satisfied that the first Section of the draft Public Meetings Bill is unconstitutional and bad …”²¹ O’Higgins agreed to modify the Bill to avoid the constitutional difficulties raised,²² although the legislation was eventually abandoned because it proved impossible to avoid breaching Article 9 of the Constitution.²³ In this case Kennedy’s—and Costello’s—concern for the rule of law proved stronger than the authoritarian impulses of O’Higgins.

As well as his work for Kennedy, and his continuing private practice at the Bar described in the previous chapter, Jack Costello also represented the State at various inquests—a tricky assignment at a time when elements of the security forces were assassinating Republicans. In August 1923, for instance, he represented the authorities at the inquest into the death of Henry McEntee, a staff captain in the (anti-Treaty) IRA, who had disappeared from his home on 31 July, and whose body was discovered three days later in a field near Finglas with several bullet wounds. The next of kin were represented by Costello’s friend from UCD days, Conor Maguire, who said the case was one of a series of murders in which there was such an air of mystery that it had been impossible to track down the parties responsible. He added that the Coroner and the jury stood between the public and a system of tyranny. Costello rather weakly replied that he was there to assist the Coroner and the jury in every way and that every possible step would be taken to trace the murderers.²⁴

An even more notorious case was that of Noel Lemass, who was abducted from a Dublin street on 3 July 1923, and whose decomposed body was found in the Dublin Mountains in October. A friend of the family, Jimmy O’Dea—later a famous comedian, but who had trained as an optician—helped identify the corpse by recognising a pair of Noel’s glasses.²⁵ When the inquest opened in Rathmines Town Hall, Coroner Dr J.P. Brennan (later a Clann na Poblachta TD) said he had received reports that “the teeth were torn from the jaws” which “suggested a barbarism of which the most pitiless savage would be ashamed”. Costello sought an adjournment in order to seek medical evidence, but this was opposed by A. Lynn, counsel for the murdered man’s brother, Seán Lemass. Lynn claimed some of his witnesses were afraid of being killed. Costello said that the forces of the State were available for their protection—which was not very reassuring given that the forces of the State were responsible for the murder of Noel Lemass. Lynn was allowed to call his witnesses, who disclosed death threats from the Free State forces warning them not to give evidence.²⁶

Despite the extra assistance, Kennedy still appeared to be swamped by his work, receiving a blistering complaint from W.T. Cosgrave in April 1924 about delays in dealing with Colonial Office Despatches. “Many of these appear to have lain in your Office for over a year without attention … I cannot but think that there is something seriously wrong in the administration of a Department where Despatches on important matters are allowed to remain undealt with for so long.”²⁷ Kennedy sent a spirited response, expressing surprise that Cosgrave had accepted “apparently without question, the far from fair indictment which has been put up to you, I suppose by the Secretariat”. He was able to give a reasonable excuse for the delay in dealing with each of the Despatches in question, and then addressed the wider issue of the running of his office. “I am afraid you lose sight of the fact that in a Department like mine … every matter dealt with is a matter of a personal ruling by me, and not the mere initialling of a Civil Service file … I must confess to having been overmuch accessible and agreeable to all and sundry who made demands upon my help regardless of time or my own convenience. The ‘statement’ you ask ‘as to what steps I propose to take in the matter’ need not go beyond the first step, namely, to cut out for the future accessibility and general agreeableness.”²⁸

Kennedy’s period of inaccessibility and disagreeableness didn’t have to last long—a month later he was appointed the first Chief Justice of the Irish Free State. He was replaced as Attorney General by John O’Byrne.²⁹ On the day of his appointment, O’Byrne wrote to W.T. Cosgrave reminding him to raise with the Executive Council his own appointment as a King’s Counsel.³⁰ This was duly approved, and O’Byrne became the last barrister in the Free State appointed a K.C.³¹ As we have seen, the new courts system came into operation a few days later, on 11 June, and in July the Executive Council agreed that from then on, barristers called within the Bar would be termed Senior Counsel rather than King’s Counsel.³²

Costello continued as Legal Assistant to the new Attorney General, who asked him to study the legal changes that would be necessary if, as expected, substantial portions of the territory of Northern Ireland were transferred to the Free State by the Boundary Commission.³³ In April 1925, Costello took silk, writing to Diarmuid O’Hegarty, Secretary to the Executive Council, that he was “anxious to be called to the Inner Bar at an early date … I am authorised by the Chief Justice and by the Attorney General to say that they approve of and support my application.”³⁴ Kennedy wrote in support of the application,³⁵ and on 5 May 1925 Governor General Tim Healy issued the patents for Costello, along with James Geoghegan and Martin Cyril Maguire.³⁶ The following day at the Supreme Court in Dublin Castle the three (wearing full-bottomed wigs) were duly called within the Bar by the Chief Justice, “whose formal inquiry, ‘Have you anything to move?’ they acknowledged with a bow”.³⁷

More preferment was to come to John A. Costello soon after. On Friday 8 January 1926, the Executive Council nominated O’Byrne to a vacancy in the High Court, and Costello as his replacement as Attorney General. The appointments were made by the Governor General the following day, a Saturday. On Tuesday 12 January, Chief Justice Hugh Kennedy admitted Costello to the “precedence at the Bar to which he is entitled by virtue of such appointment”.³⁸ The golfing correspondent of the Irish Times noted that this meant that devotees of the game held the post of Attorney General on both sides of the Border. The North’s Attorney, Anthony Babington, was “very closely identified in the game in Ireland” and “a regular competitor at our championship meetings”. Jack Costello was said to be “very popular” at his Milltown Club, but in a case of damning with faint praise, it was noted that “he plays a good game, but figures but rarely in competitive golf”.³⁹ Following his appointment as Attorney-General, Costello was also elevated to membership of the benchers of King’s Inns,⁴⁰ a position he was proudly to hold for the rest of his life.

While reports of his appointment referred to his popularity at the Bar, he was undoubtedly young for the post at 35 and with just 12 years’ practice behind him—of the first 17 Attorneys none was younger and only Cearbhall Ó Dálaigh was the same age.⁴¹ He later said that any danger of his developing a swollen head as a result of his early promotion was dashed by the Evening Mail, which said he had become Attorney General by “a strange concatenation of fortuitous circumstances”. Another deflation came from British M.P.Lady Nancy Astor, who, on being introduced by W.T. Cosgrave to his new AG at the Imperial Conference of November 1926, responded, “That thing? Attorney General?”⁴² While this incident was doubtless apocryphal, the fact that Costello repeated the alleged comment may indicate his nervousness at taking up such an important post at a relatively young age.

His new job carried the very respectable salary of £2,500 per year, the same as the President of the Executive Council (by comparison, Cabinet ministers received just £1,700).⁴³ The salary made up for the loss of his burgeoning practice at the Bar, and he was by the standards of the 1920s very well off. It appears he took some responsibility for the financial affairs of the wider family, paying for his mother’s funeral in July 1929, for instance.⁴⁴ He also continued to make charitable donations, being included on the list of solid Catholic citizens subscribing to the St Vincent de Paul Night Shelter in January 1926. He gave £3.3.0, the same amount as Hugh Kennedy.⁴⁵

Costello owed his handsome salary to Kennedy. It had been set at this level in 1922, possibly because of Kennedy’s complaint that he had been unable to continue his private practice at the Bar (one of his conditions for taking the job) because of the volume of Government work he faced.⁴⁶ The question of private practice by the Attorney General continued to generate debate for many years to come. Kennedy himself, speaking in the Dáil during the debate on the Ministers and Secretaries Bill in 1923, rejected the notion that the office should be a full-time one. He pointed out that the “exceedingly exacting character of the position” which had prevented him from taking any private practice would probably not continue once the new State was firmly established. He added that no barrister could accept the job as a full-time office, as he would lose his position in the profession.⁴⁷

Seven years later, Cosgrave sought Costello’s views on the subject, enclosing a newspaper clipping reporting a case in Belfast in which Babington appeared.⁴⁸ Costello replied that while he had “kept the point open that in theory at least the Attorney General is entitled to take on private work, in practice I have never done so nor has either of my predecessors”. He then went further, stating that “in principle I think it is wrong that the Attorney General should be entitled to take private work. Abuses might very easily result. It is, of course, essential that the Attorney General should be above suspicion and his remuneration has to be fixed with that object in view.” He added that when the Attorney appeared in Court for the Government, the practice had been that he did not take any fee over and above his salary.⁴⁹ (Costello had represented the State in Court in a number of important cases, such as Leen v. President of the Executive Council in the High Court in 1926, and Fogarty v. O’Donoghue in the High and Supreme Courts in 1928.⁵⁰) Cosgrave directed that the exchange should be filed to give a permanent record of the practice regarding fees.⁵¹

A further memorandum on the subject, dated 1 February 1932, is unsigned, but a note in the file suggests it should be attributed to Costello (an attribution accepted by J.P. Casey, the author of the standard work on the office of the Attorney General).⁵² However, as the memorandum argues that the prevailing practice should be changed to allow the Attorney to carry out private practice, and as the incoming Fianna Fáil administration adopted this approach, it seems far more likely that it was written by Conor Maguire, who succeeded Costello as Attorney General, and added to the file after the change of government. Further support for this view comes in a letter from Costello to G.P.S. Hogan, secretary to the Committee of Inquiry into Ministerial and Other Salaries in 1937, in which he repeats his view that “in principle the Attorney General ought not to engage in private practice”.⁵³

When the new Fianna Fáil government took office in March 1932, it announced, with a great show of Republican virtue, that it was cutting the salaries of the President and the Attorney General from £2,500 to £1,500, and of ministers from £1,700 to £1,000 per annum. However, the virtue was somewhat more apparent than real—the old figures were before tax, while the new ones referred to after-tax income.⁵⁴ In addition, the new Attorney General had other compensations—the new Government allowed him to take private cases, and to keep fees earned in the course of his duties.⁵⁵ However, this position was later reversed—in December 1936 it was decided that such fees should be retained by the Exchequer, and in January 1946 it was formally decided that the Attorney should not take private work.⁵⁶

Ironically, it was John A. Costello, back in government as Taoiseach in 1948, who reversed these decisions, agreeing to allow his Attorney General, Cecil Lavery, to “engage in such private practice as, in his discretion, he might deem not to be incompatible with the duties of his office”,⁵⁷ and also to retain fees paid to him for the discharge of his duties.⁵⁸ He also insisted on the revival of the tradition that the Chief Justice should formally welcome Lavery and “summon him to his place as leader of the Bar”, a practice which had died out after 1936.⁵⁹ Given his own attitude when Attorney General, it appears strange that Costello should revert to the practice established by his rival Conor Maguire. But in his 1937 letter about the role of the Attorney General, in which he stated that in principle the Attorney should not engage in private practice, Costello went on to point out that anyone taking on the job “would be called upon to make a very great personal and professional sacrifice. I may say that I personally would not accept the position unless I were assured that I could devote myself to a very considerable extent to private practice.”⁶⁰ In 1948 he made a similar point to the Secretary to the Government, Maurice Moynihan, in relation to Lavery. Costello stated that it was in the public interest to appoint a leading member of the Bar, and it would be unreasonable to expect them to make the considerable sacrifice of income involved in accepting the office without the right to engage in private practice.⁶¹

Of course, Cecil Lavery in 1948 was a well established senior counsel, and would have been able to earn a much higher income than would Costello at the time of his own appointment in 1926, when he was an S.C. of just six months’ standing. By the time he wrote in 1937 that he would not take the job without the right to practice privately, Costello would have been a considerable earner himself, which probably explains the change in his own attitude to the job—although his view of the principle involved did not change: he recognised the potential for conflict of interest. In conversation with J.P. Casey in March 1975 about his appointment of Lavery, Costello once again stressed his opposition in principle to private practice by the Attorney because of the danger of abuse, but said “he believed that no such danger could arise in this instance.” As Casey points out, in 1950 Lavery’s successor as Attorney, Charles F. Casey, appeared for the respondent in the controversial Tilson case, which involved religion and adoption. “It is surprising that Costello did not intervene to prevent this. The case gave rise to considerable controversy about the implications of Article 44 of the Constitution, and it was hardly desirable for the AG to have been—unnecessarily—involved in this.”⁶²

The other potentially controversial aspect of the Attorney General’s role concerned his involvement in politics. Hugh Kennedy, of course, had been elected to the Dáil in a by-election after his appointment—apparently at Cosgrave’s suggestion.⁶³ But subsequently Cosgrave, and particularly Kevin O’Higgins, took the view that the Attorney should not be a TD. As Costello later recalled, “Mr Cosgrave, many a time, put it to me that his view was that the Attorney General occupied a quasi judicial position and he should be apart from politics and that the government should be … enabled … to get an opinion from the Attorney General that was unbiased and untinged with their political outlook and that it therefore could be relied upon as completely impartial and not being motivated or activated by politics.”⁶⁴ Kevin O’Higgins, according to his biographer, “disliked the conventional legal careerist who takes up politics as a means of advancing himself in his profession … O’Higgins wished to establish the practice of appointing, as law officer to the Government, a barrister who had no seat in the Dáil to think about and who could give a detached opinion, as though he were advising a private client.”⁶⁵ Costello did not follow this principle himself—his first Attorney General, Cecil Lavery, was a senator, and aTD, Patrick McGilligan, was Attorney during his second administration.

However, not being a TD does not imply a lack of political commitment—in the case of an Attorney General, support of the party in power is a necessary qualification for the job. In a 1974 newspaper interview, Costello was reported as saying that Cosgrave and O’Higgins believed the Attorney “should not be a member of, or attached to, any political party”.⁶⁶ This notion was described as J.P. Casey as “surprising”,⁶⁷ which indeed it is; it is also completely inaccurate. Costello was 83 when he gave the interview, and it appears that he was simply a little confused. In the same interview he criticised modern-day barristers for getting married after just five years at the Bar, claiming that “in my day it was an accepted rule that no young barrister got married until he was 10 years at the Bar”.⁶⁸ Evidently neither Costello, nor the interviewer, recalled that he was married in 1919, just five years after his call.

In any event, Costello as Attorney General was far from politically unattached, describing himself in later times as “a convinced supporter” of Cumann na nGaedheal,⁶⁹ although as we shall see in Chapter 5 his first foray onto the hustings did not come about until the 1932 election. As J.P. Casey pointed out, the only way to have depoliticised the office of Attorney General would have been to make it a Civil Service post,⁷⁰ which doesn’t appear to have been seriously contemplated by anyone. Indeed, by the 1970s, Costello had come to the view that Ireland should follow the British pattern, with the Attorney Generalship working as a full ministerial office⁷¹—a view which may well have been strengthened by his son Declan’s then position as Attorney General and TD.

While the “immense volume of work” involved in setting up the State referred to by Hugh Kennedy had eased somewhat, the job of Attorney General was still extremely busy, as the Cosgrave government continued to face enormous challenges, many of them with a legal aspect. The range of Commonwealth and international relations, in which the government of the Irish Free State sought to widen and extend its status as an independent state, will be dealt with in the next chapter. But in domestic politics too, there were many thorny legal challenges—including relations with the Stormont government across the Border; the problem of emergency legislation to deal with the threat of Republican violence; the Fianna Fáil challenge on the Oath and Annuities issues; and the problem of appeals to the Privy Council. In each of these, Costello was to play a prominent part.

One of the first matters to be dealt with by the new Attorney General was the question of appeals to the Privy Council, a matter of considerable legal and political delicacy, but one with which Costello was well familiar. While the Treaty of December 1921 did not specifically mention the Privy Council, it was agreed that the Irish Free State was to have “the same constitutional status in the Community of Nations known as the British Empire” as Canada, Australia, New Zealand and South Africa, and specifically that the position of the Free State “in relation to the Imperial Parliament and Government and otherwise shall be that of the Dominion of Canada, and the law, practice and constitutional usage” governing relations between Canada and the Crown and Westminster would also govern those with the Irish Free State. One of those practices was the right of appeal to the Judicial Committee of the Privy Council (a group of Law Lords, sitting in London). In fact, the British deliberately chose Canada because the appeal was provided for in the British North America Act but was modified in the Australian and South African Constitutions.⁷²

But the actual terms of the Irish Free State Constitution appeared to the British to renege on the Treaty. Article 66 stated that the decision of the Supreme Court “shall in all cases be final and conclusive, and shall not be reviewed or capable of being reviewed by any other Court, Tribunal or Authority whatsoever”. However, it then continued, “Provided that nothing in this Constitution shall impair the right of any person to petition His Majesty for special leave to appeal from the Supreme Court to His Majesty in Council or the right of His Majesty to grant such leave.” So, were decisions of the Supreme Court final, or were they not?

When Lloyd George saw the terms of the draft Constitution, he complained that it was “wholly inconsistent with the Treaty”. He demanded answers on a range of issues which he felt were unclear in the Constitution—the oath, the declaration to be signed by members of the Provisional Government, common citizenship, the position of the Crown, treaty-making powers, and the Privy Council. “Are the courts of the Irish Free State to stand in the same relation to the King in Council (the Judicial Committee of the Privy Council) as do the courts of the Dominion of Canada?”⁷³

In his response the following day, Arthur Griffith pointed out that the Privy Council question was “a matter of no small delicacy in Ireland”, adding that the appeal procedure was being challenged in the Dominions and could well be abolished in the near future. He said objection would be taken to some of those likely to be members of the Judicial Committee, adding, “we must ask what guarantees can be given that the impartiality of the Court in question can be secured”. And he objected to the appeal on grounds of expense. “It is a rich man’s appeal which may well be used to the destruction of a man not well off.” In conclusion, he said the Irish side “did not think that this appeal was a necessary incident of the Treaty position”.⁷⁴

Despite the British complaints, the Constitution became law with the relevant article intact. Hugh Kennedy believed “there is to be no appeal from the Irish Courts to the Privy Council in London, only some old supposed right of anyone personally to petition the King being reserved”.⁷⁵ In a letter to Labour Party leader Thomas Johnson, Kevin O’Higgins explicitly stated that the proviso at the end of Article 66 was intended “to preserve only the prerogative right of appeal … and not the wider appeal existing in Canada. It is intended to give us the South African position … that is to say, no appeals from ordinary litigations, but only appeals in such matters as upon petition to the Crown it may be decided should be allowed for some special reason. The special reasons contemplated are such as arise from the litigation in question affecting the other members of the Commonwealth.”⁷⁶ Two points should be made here. In trying to achieve the South African position, the Irish were explicitly trying to wriggle out of the Treaty stipulation that the Free State should have the same “law, practice and constitutional usage” as Canada. Secondly, it was largely up to the Privy Council itself to decide if they got away with it.

The first time this was tested was in July 1923, when two petitions for a hearing came before the Privy Council. The first was Bowman v. Healy and Others—the case in which Costello had represented insurance officer Major Fuge in the Free State Courts (see Chapter 2). He again appeared in the Privy Council hearing for the respondents, along with Hugh Kennedy. The petition was withdrawn, and Kennedy sought his costs, which were awarded by Lord Haldane.⁷⁷ The other petition came from the Freeman’s Journal, which had been sued for breach of contract by Swedish paper company Follum Traeslileri. The Swedes claimed the Journal had agreed to buy 5,000 tons of paper for £365,000, but had then reneged when the market price dropped, offering only £200,000. The Swedes won damages of £165,000 in the High Court in March 1922,⁷⁸ a decision upheld in the Court of Appeal a year later, at which point counsel for the Freeman’s Journal sought a stay of execution pending an appeal to the Privy Council. Counsel for the newspaper claimed they were entitled to do so as there was the same right of appeal in the Free State as in Canada. Lord Justice O’Connor pointed out that the right only existed “where large questions of law were involved”, while Lord Chief Justice Molony asserted “there was no appeal in the ordinary sense now”.⁷⁹ The irony of the last remnants of the British legal establishment refusing a nationalist newspaper the right to appeal to the King appears to have been lost on all concerned.

When the Freeman case came before the Privy Council in July 1923, the Free State was represented by its current and future Attorneys General—Hugh Kennedy and John A. Costello. The ruling, by Viscount Haldane, was all the Free State could have wished for. “Ireland is now by virtue of the Treaty … a Dominion … She has got immense control over her own internal affairs … and it follows that she must in a large measure dispose of her own justice … I was anxious not to rule out all the exceptional cases, but as the general principle is the first thing to start with, the general principles are principles of Dominion justice.”⁸⁰ As Hugh Kennedy wrote to Cosgrave, the ruling allowed the Irish “to establish our position in this matter rigidly, and I need hardly say that this is a matter where, if they had been so dishonestly minded, the British side could have eaten into our rights very substantially”.⁸¹

But the position in fact was not as rigid as Kennedy believed, and there were inevitably further appeals. Two of these were heard in December 1925, with Costello on the Free State’s legal team. The first, Lynham v. Butler, arose out of the interpretation of the 1923 Land Act, while the second, the Wigg and Cochrane case, concerned compensation for civil servants who retired under the terms of the Treaty. In Lynham v. Butler, the Lord Chancellor, Viscount Cave, ruled that “it does appear to be a point of importance which may arise in other cases, and their Lordships will advise that leave to appeal shall be granted on the usual terms”.⁸² This decision caused particular annoyance to the Irish, as “this was a matter of purely internal law”, and because questions asked by members of the Privy Council “revealed a complete misconception … of an aspect of Irish Land Law which had been established for decades”.⁸³

The decision to grant leave to Wigg and Cochrane would appear to have had more justification, as the civil servants in question, who had won their case in the High Court but had it overturned on appeal to the Supreme Court, were trying to establish whether a claim to compensation under the Treaty was justiciable in the courts. According to Charles Bewley, who appeared before the Privy Council along with Costello, the Law Lords “obviously knew very little of the Pensions Act and nothing whatever of the various laws and orders governing the relations between Great Britain and Ireland”. After the hearing, as the two Irishmen walked down Whitehall, Costello asked Bewley if he knew the average age of the judges. He didn’t, but Costello had discovered from Who’s Whothat the youngest was 71 and the oldest 87, the average age being 75. “Now that I know what the Privy Council is like, I’ve made up my mind that it must go. It’s a scandal that such a court should have the final decision in Irish cases.”⁸⁴ Bewley’s memoirs are generally unreliable (as well as betraying his unpleasantly pro-Nazi outlook) but his record of this exchange has the ring of accuracy. It would be typical of Costello to prepare thoroughly for such a case, including checking up on the judges; and his trenchant response to seeing the Council in action is also characteristic.

When Costello took office as Attorney General he was faced with the fallout from these two cases. The Privy Council’s decision in Lynham v. Butler was dealt with easily enough through the 1926 Land Act, passed into law on 11 March, which clarified the anomaly at issue and backdated it.⁸⁵ Costello explained to Justice Minister Kevin O’Higgins that such Declaratory Acts were not uncommon, and were used “to set aside what Parliament deems to have been a judicial error, whether in the statement of the Common Law or in the interpretation of a Statute”.⁸⁶ The British Conservative Lord Cave, no supporter of the Free State, described the procedure as an “effective and ingenious” way of getting round the Privy Council.⁸⁷ Costello kept an eye on developments in the case through “cautious enquiries”, which indicated that the Privy Council appeal would not now be proceeded with.⁸⁸ (A third case in which leave to appeal was granted, the Performing Rights Society v. Bray UDC, was also circumvented by introducing legislation, in this case, the Copyright Preservation Act, 1929.⁸⁹)

The Wigg and Cochrane case, however, was not so easily disposed of. It proceeded to hearing before the Privy Council, and the Free State lost the case, leading to a position where the civil servants were awarded benefits which the British Government did not grant to its own civil servants. Ernest Blythe, the Minister for Finance, estimated that the extra benefits granted by the Privy Council would cost £55,000 immediately as well as an unquantifiable continuing annual charge. He refused to make any payment to the individuals involved, and he and Costello agreed the form of a despatch to the British Government on the issue.⁹⁰ Complex negotiations ensued between the Irish and British Governments, and between the Irish Government and the Civil Service unions, led by the General Secretary of the Post Office Workers’ Union, Bill Norton. Working closely together on this issue built up a significant level of trust between Costello and Norton, which would be important in later years. In 1929, agreement was reached on a new tribunal to assess compensation to civil servants. The Irish conceded the better terms, while the British agreed to repay the extra money involved. The settlement, which was embodied in legislation in both jurisdictions, was in effect “the first revision of the hitherto sacrosanct Treaty”.⁹¹

Whatever practical measures might be taken to resolve problems thrown up by particular decisions of the Privy Council, it was clearly impossible to continue in a situation where litigants in seemingly innocuous cases might be granted leave to appeal. There was also the Constitutional principle at stake. British attempts to reform the operation of the Privy Council were opposed by the Free State, on the grounds that such efforts were “likely to make its eventual abolition more difficult”.⁹² In January 1931, the Executive Council asked Costello to examine the possibility of declaring that decisions of the Supreme Court were final.⁹³ His draft legislation was considered by the Executive Council in March. Costello offered his colleagues two drafts of the Constitution (Amendment No. 17) Bill, 1931, which differed only in their long title. The first described the act as one “making absolute the finality of decisions of the Supreme Court”, while the second was more to the point, saying it would make “the decision of the Supreme Court incapable of review by His Majesty in Council”.⁹⁴

Ministers chose the first, more diplomatic, option, but decided to hold the legislation in reserve, as it was “possible that the question with which they are intended to deal may be solved by other means”.⁹⁵ It appears Patrick McGilligan, the Minister for External Affairs, was hoping to reach agreement with the British on the issue in the context of the Statute of Westminster, which will be discussed in the next chapter. In October it was agreed to defer consideration of the matter for another two months, while in December McGilligan indicated that he didn’t want the subject put back on the agenda of the Executive Council.⁹⁶ The effect of this, of course, was to leave the matter for the incoming Fianna Fáil government to deal with.

The second major issue facing Costello as Attorney General was emergency legislation to combat IRA activities. Such measures were introduced three times during his term of office, in 1926, in 1927 (after the assassination of Kevin O’Higgins), and again in 1931. Costello was a most reluctant participant. Many years later, he was to describe himself as being “very tired and sick at heart at all the rows that were going on between Irishmen”, and describing himself as having “the misfortune to have to prepare and … put into practice” these measures.⁹⁷ Indeed, he claimed this distaste encouraged him to repeal the External Relations Act as a way of “taking the gun out of Irish politics”.⁹⁸ Ironically, in a tribute after his death, then Taoiseach Liam Cosgrave stated that Costello’s greatest contribution “was in the Constitutional sphere”, citing his work in drafting “many of the original public order acts”⁹⁹—which perhaps says more about Cosgrave’s order of priorities than it does about Costello’s. Curiously, his role in drawing up emergency legislation was later praised by one of the targets of such laws, Seán MacBride, who believed Costello insisted on their passage “in order to avoid the rule of law from being disregarded completely”.¹⁰⁰ In other words, if the Government and the Gardaí were going to break the ordinary law anyway, it was better to suspend the operation of that law rather than ignore it.

Costello’s first brush with emergency law came in November 1926, following a series of raids on Garda stations which led to the deaths of two Gardaí.¹⁰¹ On 15 November, the Government approved “the immediate introduction” of a Public Safety (Emergency Powers) Bill, 1926, the text of which was approved the following day. The Bill was signed into law just three days later.¹⁰² The legislation allowed for the declaration of a state of emergency, which would last for a renewable period of three months, during which persons suspected of committing a scheduled offence could be interned by ministerial order.¹⁰³ However, the legislation had to be suspended less than a month later, following reports of Garda violence towards detainees in Co. Waterford.¹⁰⁴

Emergency legislation again became necessary following the murder of Kevin O’Higgins, the Minister for Justice and External Affairs, and Vice-President of the Executive Council, on Sunday 10 July 1927. The Government’s response was twofold. It introduced public safety legislation suspending Habeas Corpus, establishing special non-jury courts and reintroducing internment—“essentially a return to the emergency measures of the Civil War”.¹⁰⁵ Secondly, it brought in a new law forcing Fianna Fáil TDS to take their seats in the Dáil. Following the election of June 1927, Fianna Fáil TDS had turned up in Leinster House to take their seats, but after telling the Clerk of the Dáil that they would not take the Oath prior to doing so, were removed from the premises by the Captain of the Guard. Two of their number, Seán T. O’Kelly and Seán Lemass, subsequently challenged this action in the High Court, naming as defendants Costello as Attorney General, Ceann Comhairle Michael Hayes, the Clerk of the Dáil and the Captain of the Guard. Costello armed himself with the legal opinion of four eminent counsel—A.K. Overend, W.G. Shannon, Charles Bewley and Cecil Lavery—who were “clearly of opinion that the Plaintiffs were not entitled to attend the meeting of Dáil Éireann so summoned without having first taken … the prescribed oath …”¹⁰⁶ Equally eminent counsel—Arthur Meredith, Albert Wood, and George Gavan Duffy—advised Fianna Fáil that “there is no authority in anyone under the Treaty or the Constitution or the Standing Orders of Dáil Éireann to exclude any member of that House (whether he has taken the oath or not) from any part of the House before the House has been duly constituted and the Ceann Comhairle thereof duly elected”.¹⁰⁷

O’Higgins was murdered while this legal action was still pending, so the Executive Council considered ways of forcing the issue. It initially proposed declaring the seats of existing deputies vacant if they failed to take the oath, but following discussion with Labour leader Thomas Johnson it was decided “not to vacate the Irregular Seats, but to make a sworn declaration of intention to comply with Article 17 … a condition precedent to valid nomination for all future elections”.¹⁰⁸ This was duly included in the draft legislation forwarded by Costello the following day, which required candidates to declare their intention of taking the Oath, set down a two-month time limit for them to do so, and provided for the seats to be declared vacant if they didn’t.¹⁰⁹ In any event, the outcome was the same—de Valera led his deputies into the Dáil on 12 August, having taken what was now described as an “empty formula”.

But while the legislation was passed by both Houses of the Oireachtas on 10 August, it wasn’t actually signed into law for another three months. On the sixteenth, Cosgrave was handed a petition, signed by 64 Labour and Fianna Fáil TDS, asking that the Bill be suspended for 90 days under Article 47 of the Constitution. (This could have been avoided if both Houses of the Oireachtas had declared the Bill necessary for the immediate preservation of the public peace, as they had done for the Public Safety Bill.¹¹⁰) The signatures were sent to the Ceann Comhairle to confirm they were accurate,¹¹¹ while the Attorney General was asked for his opinion as to whether the Governor General should be advised to sign the legislation despite the petition.¹¹²

The Ceann Comhairle confirmed the accuracy of the signatures within two days.¹¹³ Extraordinarily, as late as mid-October, the Assistant Secretary to the Government was writing to Costello to enquire if he had come to a conclusion on whether the Bill should be signed.¹¹⁴ Speed may not have appeared that important as Fianna Fáil had already entered the Dáil, but until the legislation was actually signed by the Governor General, there was always the danger that the Opposition would be able to secure enough support to demand a referendum on the issue,¹¹⁵ which makes Costello’s apparent inertia inexplicable. Although the Executive Council had considered removing the Constitutional provision for referendum and initiative after O’Higgins’ assassination,¹¹⁶ they did not do so until the following year.¹¹⁷

This, along with the decision to apply the requirement to take the oath only on future election candidates rather than unseating those already elected, is another example of a paradox at the heart of the government’s reaction to the assassination of its Vice-President. While portrayed as draconian, the response was in fact far more measured than might have been expected, or than was initially considered. For instance, five days after the murder, the Executive Council decided that rather than immediately suspending trial by jury, legislation should only give it the power to do so by proclamation.¹¹⁸ A further decision three days later referred to “if and when extraordinary tribunals were set up”.¹¹⁹ Clearly, the Government was a lot less hard-line than is usually believed—in fact the power to set up courts martial was not used.¹²⁰ In November, Cosgrave indicated “in view of the altered circumstances which have arisen since that Act was passed that its duration might reasonably be limited to the 31st December, 1928”.¹²¹ The following May, the Minister for Justice, James FitzGerald-Kenny, told Eamon de Valera that while four people had been arrested under its terms, nobody was then detained under the Act, and nobody had ever been convicted under the Act of any offence.¹²² It was, then, no great surprise when the Act was repealed at the end of 1928—although the repeal caused considerable annoyance to Garda Commissioner Eoin O’Duffy.¹²³

While de Valera’s decision to take the Oath contributed immeasurably to the long-term stability of the political system, it left Cumann na nGaedheal in a minority in the Dáil. Fianna Fáil agreed to support a Labour minority government in order to get Cosgrave out, in return for a Labour commitment to remove the Oath. This arrangement was later described by Costello as “a conspiracy by the Labour Party”¹²⁴—a rather strange interpretation of democratic politics, but indicative of the intense suspicion of Fianna Fáil held by the government of the day. The Dáil debated a confidence motion put down by Labour leader Thomas Johnson on 16 August. Another party, the National League, agreed to support the motion, and Cosgrave and his colleagues were suddenly staring defeat in the face.

But good luck, a malleable Opposition TD and a large amount of alcohol intervened to save the day. The National League’s Alderman John Jinks was waylaid by Bertie Smyllie of the Irish Times, plied with drink, and put on the train home to Sligo. A piece of evidence in Blythe’s papers suggests Costello was aware of, if not involved in, these events. On the back of a card on which is typed “Attorney-General” is a hand-written note (presumably by Costello): “Jinks is gone away. It will be a tie with casting vote.”¹²⁵The vote was duly tied at 71 each and the Ceann Comhairle cast his vote for the status quo. Cosgrave then proposed a three-month adjournment, which after some haggling with the Opposition was reduced to two months, and the Dáil adjourned.¹²⁶

Which was all well and good until the House resumed in October, and Cosgrave and his ministers would face the same arithmetic, with no guarantee that the disappearance of Jinks or some other deputy would work the next time. And once they lost a vote in the Dáil, they wouldn’t even be able to call an election. Article 53 of the Constitution was very clear: “… the Oireachtas shall not be dissolved on the advice of an Executive Council which has ceased to retain the support of a majority in Dáil Éireann.” But at this point Jack Costello proved worth his legal weight in gold.

In both August 1923 and May 1927 the Dáil had voted on a dissolution motion before an election took place. The Executive Council believed that it had no right to dissolve the Dáil without the Dáil’s own consent. But, according to Ernest Blythe, Costello pointed out that the wording of the Constitution did in fact allow for a dissolution by the Executive without a vote in the House, and while it wasn’t in session.¹²⁷ Eleven days after the adjournment, Governor General Tim Healy proclaimed the dissolution of the Dáil, and in the subsequent election Cumann na nGaedheal and Fianna Fáil gained at the expense of the smaller parties (Jinks was among the casualties). With 62 seats and the support of the Farmers, Cosgrave was able to form a stable government.

When the new Dáil met on 11 October, the decision to call an election without consulting the Dáil was heavily criticised by Labour’s T.J. O’Connell (whose vote could have unseated Cosgrave in August, had he not been absent at a conference in Canada¹²⁸). O’Connell complained that the government had “used the powers which were given them in the most arbitrary fashion; they have trampled on the Constitution, and they have flouted the wishes, even the decisions, of the Parliament that elected them to power … Why did not the President … get a decision from that authority to have a dissolution and a general election? The President knows well, as everybody knows who sat in the Fifth Dáil, that if such a motion as that was put before the Fifth Dáil it would not have been carried. That is the reason he ignored the authority of the Dáil …”¹²⁹

O’Connell was undoubtedly right, and Costello’s advice had proved invaluable to the Government—and was to prove equally valuable to de Valera in 1933, 1938 and 1944. In fact, de Valera widened the power of the Government to call an election at the time of its own choosing in the 1937 Constitution. The 1922 Constitution said a dissolution “shall not” be granted to a government which had lost its Dáil majority; the 1937 version merely gave the President discretion to refuse it. This is one of the few discretionary powers of the Presidency, and one that has never been used, despite the best efforts of Fianna Fáil to persuade President Patrick Hillery to refuse a dissolution to Garret FitzGerald in 1982. There are other options for a government after losing an important vote in the Dáil. For instance, when the Opposition parties defeated Cosgrave on a pensions bill in March 1930, he promptly resigned and successfully asked the Dáil to re-elect him;¹³⁰ when the First Inter-party Government lost a vote on the Estimates for the Department of Posts and Telegraphs, it simply resubmitted the unchanged Estimate the following day and won a vote. The defeat in the latter case was due to accident rather than an important policy issue—one Government TD had apparently locked himself into the toilet and therefore missed the vote.¹³¹

But to return to 1927, Cosgrave was now back in power, with a secure majority; Fianna Fáil were inside the political system; and the Government, as we have seen above, felt confident enough about the security situation to repeal the Public Safety Act in December 1928. That confidence was not to last long.

In January 1929, the foreman of a jury which had convicted an IRA member was shot, though not fatally; the following month Albert Armstrong, who had given evidence against a number of Republicans who tore down a Union Jack, was shot dead.¹³² Armstrong had been worried about possible repercussions after he gave evidence, and approached Fianna Fáil TD Bob Briscoe, a friend. Briscoe later told Gardaí that Armstrong thought he might be kidnapped, not shot. After making enquiries, the TD told Armstrong that as far as he could judge he was not in any danger.¹³³ The Gardaí shared this assessment, reporting that an earlier assassination attempt had failed “owing to the faintheartedness” of one of the potential assassins.¹³⁴

Worse was to follow at the beginning of 1931, with an IRA informer shot dead in January, Garda Superintendent John Curtin murdered in Tipperary in March, and a man who had given evidence against the IRA for Curtin killed three months later.¹³⁵ These murders were a direct challenge to the justice system, and could not be ignored by the Government. The Curtin assassination has been described by Eunan O’Halpin as “a monumental miscalculation” by the IRA, which was, “as usual … taken aback by the cumulative consequences of its own operations when the government finally acted”.¹³⁶

In June 1931, Garda Commissioner Eoin O’Duffy claimed in a report to the Government that the IRA was on the verge of open insurrection—a claim given credence when thousands of Republicans defied the Government’s ban on the annual march to Wolfe Tone’s grave at Bodenstown that month.¹³⁷ The Executive Council requested a report on the extent of illegal drilling throughout the country.¹³⁸ The report claimed the IRA consisted of around 1,300 officers and 3,500 rank and file, that the organisation had successfully terrified jurors, and that in areas like Kerry and Tipperary “men are afraid to be seen speaking to the police”.¹³⁹ O’Duffy added a personal complaint to the Department of Justice, claiming that the IRA and their followers “treat the Gardaí with absolute contempt”. He complained that since the Courts had declared “harassing tactics” illegal, “the Irregulars have the field to themselves”. O’Duffy urged the Government to put those trying to overthrow the Constitution outside the protection of that document. “There is no good reason why an Organisation making war on the State should be afforded the protection which the State affords its loyal citizens …”¹⁴⁰

Proposals for new legislation were drawn up by Stephen Roche, the acting Secretary of the Department of Justice. In August 1931 he advised the Government that existing draft legislation, the Police (Powers) Bill, would be “entirely inadequate”. He was directed to submit proposals which he believed would be sufficient, “regardless of the political or Parliamentary difficulties”.¹⁴¹ Cosgrave began seeking Church support, warning Cardinal McRory of “a situation which threatens the whole fabric of both Church and State”.¹⁴²The Justice memorandum was sent to the Catholic hierarchy, with a request from Cosgrave for “joint Episcopal action in the form of a concise statement of the law of the Church in relation to the present issues … Doctrines are being taught and practised which were never before countenanced amongst us and I feel that the influence of the Church alone will be able to prevail in the struggle against them.”¹⁴³ The bishops issued a hard-hitting joint pastoral on 18 October, the day after the new emergency powers became law.

From Geneva, Patrick McGilligan wrote to the Secretary of the Department of External Affairs, Joe Walshe, expressing a preference for a “simple” Bill, giving the Government powers to deal with the security situation by decree, rather than “a Bill of a repressive type with many clauses … [which would] if it is to be put through the Dáil, give rise to interminable debates the propaganda effect of which will be very bad for us”. McGilligan also mused that the Government might be better to go for an early election rather than trying to carry on, not only because of “the irregular and Bolshie situation”, but also because of the economy. “I feel it would be sheer madness to think of trying to operate repressively throughout a miserable and poverty-stricken twelve-month. I wonder if a February election would be at all possible.”¹⁴⁴

McGilligan’s analysis of the likely election date was spot on. And while the legislation was more detailed than he wished, it didn’t spend too long going through the Dáil. Introduced on 14 October, it was law by the seventeenth. The Constitution (Amendment No. 17) Act set up a Special Powers Tribunal made up of military officers, gave special powers to the Gardaí, outlawed associations aiming to overthrow the Government by force, as well as prohibiting their publications, and gave the Executive Council the power to ban public meetings, among other things.¹⁴⁵ These new powers were inserted as a Schedule into the Constitution immediately after Article 2, and therefore called Article 2A. As soon as the Act was signed into law, the Government made the necessary order to bring it into force. In a statement, President Cosgrave noted that the powers in the Act were wide and the penalties drastic, but hoped they would only have to be used “to the minimum necessary”. He added, “The State must protect the people from everything which involves the decay and downfall of the Irish nation.”¹⁴⁶ Ironically, one of General O’Duffy’s suggestions which was not taken up was a ban on “the wearing of uniforms or badges indicating membership of an unlawful association”¹⁴⁷—a decision O’Duffy was to have cause to be grateful for a couple of years later.

Although the Government had given O’Duffy many of the powers he sought, there was evidently still nervousness about how they would be used. On the nineteenth, ministers approved a note on policy, prepared for Justice Minister James FitzGerald-Kenny by his civil servants. Mindful of previous abuses, it stressed that “any unnecessary act of violence by the police or any unnecessary discourtesy will be visited with most severe punishment”. It also noted that the police now had “ample powers within the law to deal with political crime”. Those powers were not to be exercised without political supervision—Republicans prepared to keep quiet were not to be harassed, while an executive minister was to approve the process of bringing a suspect before the Tribunal.¹⁴⁸ In fact, it was generally Costello and his successors as Attorney General who made the decision (this was long before the introduction of an independent Director of Public Prosecutions—a reform introduced by Declan Costello when he was Attorney General). The Gardaí sent copies of the relevant papers to the Attorney and to the Minister for Justice, but in practice the Attorney gave the direction without consulting the Minister.¹⁴⁹ The point was that the Gardaí did not make the decision about using special powers.

O’Duffy had different ideas. He informed the Minister for Justice that each Division had been asked to supply a list of unsolved “outrages”, together with a list of suspects for each one. He anticipated that the provisions of the new law for “accounting for movements and actions at time of the crime should be very helpful in this respect”. He also planned to arrest around a hundred leading Republicans and interrogate them, although he added, “I do not recommend internment. I believe the Act gives sufficient scope to frame some charge against any person worth arresting. There will always be a popular demand for the release of any person against whom no charge is preferred.” He assured the Minister that his men had been “warned very definitely that anything in the nature of so-called third degree methods, flourishing of guns, or bullying tactics, will be severely punished”.

The Commissioner also sought an increase in Garda numbers to cope with the extra work, asking for permission to admit two hundred retired officers into the Special Branch immediately.¹⁵⁰ A special meeting of ministers considered O’Duffy’s memo on 22 October, ruling out an increase in recruiting, rejecting his suggestion that agrarian crime and mail-car robberies should come under the Act (unless firearms were used), and limiting the interrogation powers to outrages committed since the start of the year. “It would not be in accordance with Government policy to be presented with a large number of prisoners against whom there was no heavier charge than refusing to answer questions.”¹⁵¹

The effect of the legislation, according to Eunan O’Halpin, was threefold: it removed the problem of jury intimidation; it increased the stakes for Republican opponents of the Government, who knew that internment and executions were real possibilities; and it succeeded in curbing political violence, allowing the February 1932 election to proceed in relative peace.¹⁵² But again, as after the assassination of O’Higgins, the actual implementation of the draconian powers concerned was far less severe than is generally thought. Costello later outlined his view that “every person that went to prison under that Article was a monument to the failure of that Article. Its operation was effective merely because it was in terrorem …”¹⁵³ In other words, it was a deterrent; and a deterrent that has to be used has failed. Costello made many references in later years to his unhappiness at being involved with Article 2A—viewing it as a deterrent that would not have to be used was one way of dealing with his doubts.

As soon as Fianna Fáil took office, the tribunals were suspended and the 17 men imprisoned by them pardoned. Gardaí trying to bring prosecutions against the IRA under other legislation found it almost impossible to get directions from the new Attorney General, Conor Maguire. “The message as far as the Guards was concerned … was clear. It was ‘Hands off the IRA’.”¹⁵⁴ The suspension was to prove temporary—the tribunals were reappointed in August 1933 to deal with the Blueshirts, although the IRA was soon receiving attention as well. And following the introduction of the new Constitution in 1937, Article 2A provided the template for successive Offences Against the State Acts.

O’Duffy had managed to alienate his political superiors with his extremism, as well as by refusing to accept a pay cut for Gardaí. He was clearly becoming more erratic, and the Cosgrave Government had decided to dismiss him if returned to office—one suggestion was to appoint him consul to the United States.¹⁵⁵ He was also apparently considering a possible coup, as were some elements in the Army. As his biographer puts it, O’Duffy “had little faith in the government, indeed numerous reasons to resent it, and he regarded the opposition as unfit for power. His reports revealed his lack of respect for the constitution, and an underlying belief that the public lacked the civic virtues necessary for democratic rule.”¹⁵⁶ The ministers planning to sack him knew all this, which makes their later decision to make him leader of Fine Gael all the more extraordinary.

As the election approached, the question of payments of the Land Annuities became a live political issue into which Costello was drawn. The Annuities were payments due for the purchase of land from landlords under the 1891 and 1909 Land Acts, amounting to £3 million per year. The Free State Government had committed itself in a number of agreements with Britain to continue collecting the annuities and paying them to Britain.¹⁵⁷ However, a vigorous campaign against paying the annuities was waged by the editor ofAn Phoblacht, Peadar O’Donnell. In December 1926, Costello as Attorney General advised the Department of Justice on the type of charges which might be brought against O’Donnell, suggesting that a charge of conspiracy to commit a wrongful act would be more likely to succeed than one of sedition.¹⁵⁸ Of more concern, though, was the attempted hijacking of the campaign by Fianna Fáil, which challenged the payments on technical legal grounds. The Government won a vote on the matter in the Dáil in May 1929, but the agitation continued, and Costello was instructed to draw up a comprehensive memorandum on the subject.

Despite the convention that the legal advice of the Attorney General is privileged and confidential to the Government, the 49-page memorandum was published as a Government White Paper.¹⁵⁹ It concluded that “the action of the Government of the Irish Free State in reference to the Land Purchase annuities is and has been strictly in accordance with the law and with the necessity of maintaining the credit and honour of the State”.¹⁶⁰ Fianna Fáil, naturally, were not impressed, complaining that “it seemed hardly fair tactics to present such a document to the public on the eve of an election”, and producing its own legal opinions which argued the opposite case.¹⁶¹ When Fianna Fáil in power withheld the Annuities, sparking the Economic War, the British Treasury brief challenging their right to do so quoted Costello’s memorandum in support of the British position.¹⁶²

Throughout Costello’s time as Attorney General, there was a continuing dispute involving Dublin, Belfast and London over fishing rights in Lough Foyle. The rights were claimed by the Irish Society, the body set up by Royal Charter in 1613 to govern the plantation of the Derry area by the City of London. The Society had leased the fishing rights to the Foyle and Bann Fisheries Company. Which was all well and good, except that Donegal fishermen in the Inishowen peninsula didn’t recognise the Society’s right to control fishing in the lough. Their fishing—or poaching, depending on the point of view—threatened to lead to violent confrontation. In 1923, Donegal District Court threw out a trespass case against the Donegal fishermen because jurisdiction over the lough was unresolved—and it was to remain unresolved despite intensive negotiations involving Costello and his counterpart in Belfast, Anthony Babington.

In July 1925 the Secretary to the Executive Council, Diarmuid O’Hegarty, wrote to the Boundary Commission pointing out that the Government of Ireland Act defined Northern Ireland as consisting of parliamentary counties, rather than counties. And in maps drawn up to show the parliamentary counties, the lough was not included in either Londonderry or Donegal. Therefore, the argument went, the lough by definition was not part of Northern Ireland and so belonged to the Free State.¹⁶³ Craig and Cosgrave met in London in December 1925 to agree, with the British, a settlement which shelved the report of the Boundary Commission in return for the removal of financial liabilities incurred by the Free State under the Treaty.¹⁶⁴ Craig came away with the impression that Cosgrave had “practically concurred” in the view that the lough was included in the parliamentary county of Londonderry. According to Craig’s recollection, Cosgrave asked that this not be included in the Agreement, “as he would experience sufficient difficulty in dealing with the actual question of the Boundary Agreement in the Dáil”.¹⁶⁵

Given this recollection, Craig was confident that the Lough Foyle issue could be sorted out in talks with Dublin, even though “we were still in some doubt as regards our legal position”.¹⁶⁶ Attorney General Babington was also “strongly of opinion that outstanding questions should be settled by an amicable arrangement with the Free State rather than having the matter contested in any Court”.¹⁶⁷ At the end of July 1926, the Cabinet authorised Babington to go to Dublin to have an informal chat with his opposite number, Jack Costello, “to see whether some arrangement could be arrived at which would overcome the immediate difficulty”.¹⁶⁸ The two men duly met in August, but their discussions don’t seem to have made progress.¹⁶⁹

The following March, the Northern Prime Minister, now elevated to the peerage as Lord Craigavon, wrote to Cosgrave saying that with the fishing season starting on 15 April “serious trouble may occur unless this question of jurisdiction is definitely settled before then”. He said his government intended introducing legislation in the Northern Parliament to deal with the matter, and went on to outline his recollection of their discussion in London.¹⁷⁰

This letter immediately set off alarm bells in Dublin. Cosgrave sent a copy to Costello, seeking material for a reply,¹⁷¹ later telling him that the question raised by Craigavon in London was to do with shipping rights in the lough, not fishing.¹⁷² In his reply to Craigavon, Cosgrave insisted that his recollection of their discussion in London was quite different, and that neither he nor any of his colleagues changed the position they had adopted since the Treaty, that all of Lough Foyle was within the Free State’s jurisdiction. The proposed Northern Bill was based on an assumption of jurisdiction which Dublin “very strongly controverts”, and would create “a very serious situation” if it proceeded.¹⁷³ He also wrote to British Prime Minister Stanley Baldwin advising him of the situation.¹⁷⁴

Craigavon appeared somewhat taken aback by Cosgrave’s response, agreeing that the question was now more serious than one of disputed fishery rights, and suggesting that his government should introduce its Bill, and if it was ultra vires the British Cabinet could then refer it to the Privy Council under the terms of the Government of Ireland Act¹⁷⁵—a suggestion that was immediately and predictably rejected by Cosgrave, who proposed direct negotiations instead.¹⁷⁶ Craigavon, clearly wary of too much contact with Dublin, suggested that as it was a legal question, it might be better to have the respective Attorneys General discuss it, a suggestion Cosgrave accepted.¹⁷⁷

J.M. Andrews, the North’s Minister for Labour, had earlier expressed the fear that if news of the discussion with Dublin got out it would be misunderstood, with many people thinking it was “the thin end of the wedge towards a United Ireland”.¹⁷⁸ It was not surprising then that the Northern side treated the issue with considerable circumspection, agreeing that discussions about Lough Foyle at Cabinet would not be circulated in the normal way,¹⁷⁹ while Babington suggested discretion to Costello, writing that “one may possibly be able to talk more freely if we met privately in the first instance”.¹⁸⁰ When the two men met, they each put forward well established positions—Babington arguing that the starting point must be an admission by Dublin that the Irish Society owned the fishing rights, Costello countering that the Society should prove this by taking a case in the Free State courts. They came up with a suggested modus vivendi—each Government should pass legislation banning fishing with drift or other nets (other than those used by the Society for centuries). This would protect the Society’s fishery without affirming or denying its ownership.¹⁸¹ Shortly afterwards, Costello prepared a lengthy memorandum for his Government colleagues, stressing the strength of the Free State claim to the entire lough, but concluding that “a working arrangement ought to be effected between the two Governments”.¹⁸²

Desultory talks between the two Attorneys continued over the winter,¹⁸³ and in mid-February they met when Babington travelled to Dublin for the Ireland–England rugby match. There was a poor result in the rugby (Ireland lost by one point, 6–7, the team’s only defeat in that year’s Five Nations)¹⁸⁴ and deadlock on Lough Foyle. In some frustration, Babington wrote to Costello telling him that if Dublin couldn’t accept the Northern proposals, they should come up with their own suggestions.¹⁸⁵ This led to the formation of a Cabinet sub-committee of Ernest Blythe (Minister for Finance), Desmond FitzGerald (Defence), Patrick McGilligan (Industry and Commerce) and James FitzGerald-Kenny (Justice).¹⁸⁶ Costello again gave his opinion to the Committee that the Lough belonged absolutely to the Free State, but that under international law they couldn’t deny the Northern Government innocent passage for shipping through it. He added that the dispute had arisen from excessive and illegal drift-net fishing, which would have to be stopped even if the Free State exercised complete ownership of the Lough.¹⁸⁷ Babington’s barrage of letters to Costello continued, with some effect, as he sought further meetings of the sub-committee because of the “insistent pressure” from the Northern Attorney.¹⁸⁸ The result was rather less dynamic than Costello or Babington might have wished. Fisheries Minister Fionán Lynch undertook “to have the whole question of fisheries in the Lough and in the river exhaustively examined”, and then to bring forward proposals for how the two governments might agree to purchase and control the Foyle fisheries.¹⁸⁹

At this stage, Baldwin reactivated proposals for a conference in London,¹⁹⁰ presumably as a result of pressure from the Irish Society.¹⁹¹ The meeting took place in May 1928 in the offices of Dominions Secretary Leo Amery. Costello joined Blythe and McGilligan on the Free State delegation, while Babington was joined by John Milne Barbour, Parliamentary Secretary for Finance, and Northern Cabinet Secretary Charles Blackmore. Babington referred to his talks with Costello, and to the draft bill he had prepared to be passed by both parliaments, banning drift-net fishing on the Lough while ignoring the question of jurisdiction. But this solution was overruled by Costello’s political superiors. Blythe said it was “politically impossible”, and again called for the Irish Society to take a case in the Free State courts to sort the matter out once and for all. This was rejected by the Northern delegation, and finally Amery offered to contact the Irish Society to see if a solution could be found.¹⁹² He put to them a suggestion made by the Free State delegation, who claimed it would be politically difficult to pass legislation protecting the fishery unless there was some benefit to Donegal. Amery suggested charitable donations of two or three hundred pounds a year, a suggestion the Society agreed to consider.¹⁹³However, when the Society met representatives of the Free State Government, they found Costello in best barrister mode, claiming the sum was “absurdly low”, and again insisting that they take a court case. “Establish your right and we will protect it.”¹⁹⁴ With no legislation in prospect in Dublin, Babington wrote to Costello at the end of July putting an end to their discussions. “As we cannot get any further, things will have to remain as they are … If at any future time your Government are both willing and able to deal with the matters we have discussed I shall be only too glad to take them up again …”¹⁹⁵

The long-threatened violence broke out the following year, when a patrol boat operated by the Fisheries Company was destroyed.¹⁹⁶ In response, the Company sought an injunction in the High Court in Belfast against Free State fishermen. When it was granted, Cosgrave claimed that the Court was acting beyond its powers, and warned London and Belfast that an attempt to enforce the injunction could lead to “breaches of the peace and possibly loss of life”.¹⁹⁷ Craigavon replied that the only solution was to ban drift-net fishing, adding that legislation “jointly prepared” by Costello and Babington “admirably meets the case … as it carefully avoids any reference to the boundary issue”. He said he intended to include it in his legislative programme for the following year.¹⁹⁸ But Dublin stuck to the line that the only solution was for the Irish Society to take legal action in the Free State courts, a suggestion the British Government once again agreed to press on the Society. The British also agreed that the Belfast court action had been “very provocative”.¹⁹⁹

Violence continued with suspected involvement by the IRA, who were reported to be “anxious to make trouble” and “on the look out for Thompson machine gun ammunition”.²⁰⁰ But the Irish Society ignored the advice of the British and Irish Governments for quite some time, finally taking a case in the Irish courts in the mid-1940s which was still dragging on when Costello returned to government as Taoiseach. The fisheries issue was finally resolved by the purchase of the fishery by the two governments and the appointment of the Foyle Fisheries Commission to manage it—the first example, incidentally, of a North–South body with executive powers, an example much quoted at the time of the Good Friday Agreement.

Another legal issue involving Dublin, Belfast and London concerned the Order of Saint Patrick—and it too was to re-emerge when Costello was Taoiseach. The Order was created by George III in 1783, and was conferred only on peers connected to Ireland. The establishment of the Free State obviously created some question over the future of the Order, and in 1924, Craig made efforts to have it transferred to the North. He also wanted the Order conferred on the King’s sons, the Prince of Wales and the Duke of York.²⁰¹British Prime Minister Ramsay MacDonald ruled out any changes or new appointments.²⁰² However, the deaths of a number of knights in the next couple of years prompted the British Government to approach Cosgrave on the matter. Their emissary was Lord Granard, who was a member of the Free State Senate as well as the King’s Master of the Horse.²⁰³

The Executive Council requested Costello to prepare a memorandum on the legal position of the Order,²⁰⁴ which characteristically took 14 months to complete.²⁰⁵ Costello concluded that the King was bound to act solely on the advice of Irish ministers in relation to the Order; that Northern Ireland had no role, as it had opted out of the Free State and had no jurisdiction over dignities or titles of honour; and that it was open to the Executive Council to decide that the Order should be allowed to lapse.²⁰⁶ Ministers duly decided that this was the best course of action.²⁰⁷ The British sent a further message, through Granard, that they did not share the Irish view, but Cosgrave ignored it.²⁰⁸ Stumped by the Irish response, the British decided to keep the Order in being, but to restrict it to members of the Royal Family, and two more appointments were made, the last in 1936.²⁰⁹

However, the British managed to pull off something of a coup during the war, when the British Press Attaché (and spy) John Betjeman persuaded the Office of Arms in Dublin Castle to hand over the seal of the Order.²¹⁰ Costello was encouraged by officials to seek the return of the seal during the Anglo-Irish trade talks in 1948, but “found no opportunity of raising this matter”.²¹¹ However, his Northern counterpart, Sir Basil Brooke, did find an opportunity of raising it—the revival of the Order of Saint Patrick was one of the responses he suggested to Costello’s declaration of the Republic in September 1948.²¹² British Prime Minister Clement Attlee declined to act on the suggestion, and while the Order was never actually abolished, its last member died in 1974. Suggestions by Blythe for the creation of an independent State decoration, the Cross of the Legion of Saint Patrick, also came to nothing²¹³—the question has resurfaced from time to time over the years but without much vigour.

Costello’s position as Attorney General had involved him in several legal questions with important constitutional implications—it was also to give him a ringside seat as the Free State sought to establish its international position, and to change the British Commonwealth in ways that could hardly have been imagined in 1921.