Chapter 4  

A LONG GAME

“It is not the pace that matters, but the direction. It’s a long game, and I would like to see it played out.”¹

KEVIN O’HIGGINS, 1926

“… there have been advances made that I did not believe would be made at the time.”²

EAMON DE VALERA, 1932

“What was achieved was the final justification of the founders of this State.”³

JOHN A. COSTELLO, 1946

The Commonwealth which the Irish Free State joined by virtue of the Treaty was in a process of evolution. In fact, the Treaty was the first official document to use the new title invented by General Smuts—“The British Commonwealth of Nations”. But “the relationship of that Commonwealth remained obscure and the status of Dominion … was not clearly defined”.⁴ As historian Nicholas Mansergh pointed out, Irish governments after the Treaty had two possible policies towards the Commonwealth. “The first was to refashion the Commonwealth in closer accord with Irish interests and outlook; the second to seek the first opportunity to unravel … Irish ties with the Commonwealth.” He goes on to argue that, broadly speaking, Cosgrave pursued the first policy while de Valera pursued the second.⁵ However, it should be noted that the unravelling would have been impossible, or at the very least much more difficult, without the refashioning which had preceded it.

The Irish effort to establish and enhance the new state’s status was fought on two fronts—at the League of Nations, and at a succession of Imperial Conferences. As the Government’s chief legal adviser, Costello was part of the team which pursued the diplomatic struggle. In the words of Garret FitzGerald he was “the legal genius” of that team, whose “immense legal skill, his brilliance in any aspect of Constitutional Law, gave to our delegation of Ministers and civil servants such a basis of knowledge, experience and skill, that they were able to outmanoeuvre not just the delegations of the other countries of the Commonwealth, but the British themselves”.⁶ This, while perhaps an overstatement, captured the importance of his role. Costello’s involvement in these events also gave him a grounding in diplomacy at the highest level—whether he used that experience to best advantage as Taoiseach will be examined in a later chapter.

The new Attorney General’s first appearance on the international stage was very much a walk-on role, at the 1926 Imperial Conference in London. The official delegates to the Conference were W.T. Cosgrave, Kevin O’Higgins, Desmond FitzGerald and Patrick McGilligan.⁷ Costello was to attend as an adviser, along with the Secretary of the Department of External Affairs, Joe Walshe, Secretary to the Executive Council Diarmuid O’Hegarty, and John Hearne, legal adviser to the Department of External Affairs, who had drawn up most of the memoranda for the delegation on the issues they could expect to face.⁸ However, Cosgrave had no intention of staying in London for the duration of the Conference—O’Hegarty explained that he had had no holiday, and his wife had been ill. “He fears, and we all fear, that unless he gets some rest before the Dáil resumes, he will feel the strain very severely.”⁹ In his absence, it was clear that O’Higgins, Minister for Justice and Vice-President, would be in charge, rather than the Minister for External Affairs, FitzGerald. Cosgrave was asked which of his ministers should join him as the second Irish guest at a dinner in Buckingham Palace, being told that the chosen minister “will be regarded as the head of the delegation in your absence”. He chose O’Higgins.¹⁰This may have been just as well—O’Higgins told his wife that the British “will stand more from me than from Desmond, whom they dislike”.¹¹

In advance of the Conference, Walshe summarised the difficulties in relations with Britain. They included the “usurpation by the British Government of the right to advise His Majesty” on matters affecting a particular Dominion; the use of the Foreign Office as the channel of communications between the Dominions and foreign governments; the failure to change the Royal Title to take account of the creation of the Irish Free State and its separation from the United Kingdom; the ban on Dominion legislation having extra-territorial effect; the British view that relations between members of the Commonwealth were not “international”; and the existence of the appeal to the Privy Council (see previous chapter). He concluded that the Conference was “incomparably more important for the Dominions than any one that has preceded it”.¹²

In his own preparatory memorandum, Costello dealt with merchant shipping legislation, a fairly complex legal area which seemed unrelated to fundamental constitutional issues. But as the Attorney General pointed out, the existing 1894 Merchant Shipping Act gave the British Board of Trade the right to administer shipping throughout the Commonwealth. This, he argued, “appears to be inconsistent with the exercise of complete legislative and administrative control of their public services by the various members of the Commonwealth”. Giving member states the right to control every class of shipping within their jurisdiction would be desirable “on grounds of constitutional propriety and … on grounds of practical convenience in … administration”.¹³

If the British hoped discussion on the Constitutional question could be kept low-key, they were to be sorely disappointed. This was largely thanks to the actions of the Governor General of Canada, Lord Julian Byng, who was accused of acting in an “unconstitutional and autocratic” manner. He had refused a dissolution of Parliament to Liberal leader W.L. Mackenzie King after his minority government lost a vote of censure in the House of Commons on 26 June. Byng summoned the Conservative leader, Arthur Meighen, to form a government, but when he in turn was defeated in Parliament on 2 July he reversed course and granted the defeated Prime Minister a dissolution. Mackenzie King declared that the issue before the people was “whether or not the Government of Canada is to be carried out in accordance with the expressed will of the people’s representatives in Parliament under a system of self-government”.

Joe Walshe noted with some satisfaction that “the British would hardly regard a violent electoral contest on a big constitutional issue as a propitious preparation for calm discussion at an Imperial Conference”.¹⁴ The issue was discussed in London at a meeting between Dominion High Commissioners and the Dominions Secretary, Leo Amery, who insisted Byng had not sought or received any advice from London. The Irish High Commissioner, James MacNeill, shortly to become a Governor General himself, expressed some sympathy for Byng, but predicted that “hereafter the rubber stamp view will prevail”.¹⁵

The idea of the Governor General as a “rubber stamp” acting on the wishes of the Dominion Government would have given considerable satisfaction to Dublin. The Irish Attorney General was developing his own, very firm, ideas on the role of the Governor General. In his notes, Costello wrote that his constitutional position should be the same as that of the King. “He should have no power to question or attempt to control executive action … the possibility of the Governor General’s refusal to act on advice weakens the sense of ministerial responsibility. It is not compatible with the ideal of equality of status that a Ministry which represents the choice of Parliament and the constituencies should be subject to control in their action by a nominee of the Imperial Government, even though his action is taken on his own initiative.”¹⁶

Unlike other delegations to the Conference, the Irish rejected the British offer to provide accommodation, on the grounds that they did not have to pay heavy travel expenses. But it was clear that the Irish were really concerned with asserting their independence—Kevin O’Higgins stated his desire for “the Parliament and people of the Irish Free State to regard the Delegation as carrying on important business on their behalf as partners in the British Empire”.¹⁷ This decision signalled the attitude the Free State delegation would be taking during the conference. But it also led to constant rows with the Department of Finance over expenses. O’Hegarty complained bitterly to Finance official H.P. Boland: “The volume of work here is so enormous that we cannot reach half of it—and needless to say the financial end is the most annoying.”¹⁸

The round of socialising took its toll of the main delegates. O’Higgins complained that “every day there is a lunch or dinner to be faced—generally both and it’s all rather a strain on the ‘innards’”.¹⁹ On the plus side, he found King George V “very gracious and affable” during a 15-minute conversation at the dinner in Buckingham Palace,²⁰ and even found time to experience his first flight at Croydon one Saturday, “which I enjoyed very much … except for the noise there was nothing unpleasant”.²¹ O’Higgins, of course, was also engaged in other social activities at the time with his mistress Lady Lavery.²² But mainly the Conference was hard work—especially for Costello and the rest of the backroom team, who found themselves stuck in the Hotel Cecil for days and nights on end because of the constant need for consultation. And while the official dinners were hard on the “innards”, eating at the hotel was very hard on the finances. As Attorney General, Costello had a subsistence allowance of 30 shillings per night, but still found himself “very considerably out of pocket” after a six-week stay in London.²³

In advance of the Conference, the Department of External Affairs had hoped to combat “subtle proposals” from the British by co-operating with the Canadians.²⁴ However, their hard line appeared to worry Mackenzie King. After meeting FitzGerald and Costello, the Canadian Prime Minister noted in his diary that the Irish were “inclined to the extreme view of having five countries, each with a separate King, operating in all particulars as distinct nations”. He contrasted this with the British “desire for the single government of all”, implying that he would seek a middle way.²⁵ The Irish weren’t too impressed with Mackenzie King, with O’Higgins observing that he had “disimproved since ’23—gone fat and American and self-complacent”.²⁶ According to Desmond FitzGerald, the Canadian Prime Minister annoyed O’Higgins at a dinner party with Lord Simon by referring to “the way he and we worked together when as a matter of fact we did the fighting and got damned little support”.²⁷

O’Higgins was also unimpressed with the South African Prime Minister, General Hertzog, “a very decent and likeable kind of man [who] has not been a success—he talks a lot and none too clearly … The onus of the ‘status’ push … has fallen very largely on ourselves and while we have made some headway, it would be greater if Hertzog were more effective and King a stone or two lighter.”²⁸ After the conference, when the South African Prime Minister returned to Pretoria, he told the welcoming crowd, “We have brought home the bacon.” To which O’Higgins retorted, “Irish bacon”.²⁹ The South Africans were trying to gain a British declaration that they had a right to secede from the Commonwealth. Costello later claimed that he had advised General Hertzog “that the British would give any number of phrases recognising the right, but if it was ever being translated into practice the utmost pressure would be brought to bear to prevent it”.³⁰ This assessment may have been in his mind during the debate on repealing the External Relations Act (see Chapter 8).

While Costello was not one of the main delegates, he was more than an advisor, representing the Free State on the Committee on Workmen’s Compensation,³¹ a subject he would have been very familiar with from his work in the courts. He also represented Ireland on a sub-committee of the Committee on Inter-Imperial Relations. The sub-committee dealt with Treaty Procedure. Costello forcefully put forward the Irish position, objecting to the use of “British Empire” to cover the entire Commonwealth when signing treaties. He suggested referring to the King instead, which “would preserve the unity of the Empire, and at the same time make it clear that each of the contracting States was a separate entity acting on the advice of separate sets of Ministers”. Those parts of the Empire which were separate members of the League of Nations should not, he argued, be covered by Britain’s signature on treaties.³²

At the Committee on Nationality, O’Higgins rejected the British Home Office proposal to allow female British subjects a legal right to declare their nationality when they married aliens. The measure was proposed to deal with situations which had arisen during the First World War, when women who had lost their British nationality on marriage found themselves trapped when hostilities broke out. O’Higgins told the Home Secretary, Sir William Joynson Hicks, that he couldn’t get such a proposal through the Dáil. “We are a conservative people despite superficial evidence to the contrary … there is not in the Irish Free State the same pressure from Feminist movements which … exists in Great Britain.”³³ He observed mordantly that he and the South African representative, who also opposed change, “would be delivered into the hands of the feminist organisations of the Commonwealth of Nations as a whole burnt offering. They would be made the scapegoats and would be represented as the enemies of womankind.” He pointed out that the British Government was itself divided on the issue, with the Foreign Office opposing the change proposed by the Home Office.³⁴ Costello, meanwhile, told the Conference that they were members of the British Commonwealth of Nations, not the Commonwealth of British Nations, but this important distinction did not find enough support³⁵—yet.

In the privacy of his letters home to his wife, O’Higgins rejoiced that the Irish “are by far the best team in the Conference …”³⁶ He also floated to his wife the idea of “a dual monarchy—two quite independent Kingdoms with a common King and perhaps a Defence Treaty … It presupposes, of course, a united Ireland …”³⁷ As the Conference drew to a close, he felt they had done well and made “quite definite and important progress” on Constitutional questions. “… [I]f only people at home had a true sense of their interests they would seize the opportunity of next year’s election to steam-roll the Irregular elements and go full steam ahead for a United Ireland and a Dual Monarchy … all this lopping off of old forms and abandonment of old claims which has gone on for the last month has left a clear open avenue to that solution if only—if only we had a smaller percentage of bloody fools in our population …”³⁸ O’Higgins, accompanied by Costello, went to a function at one of the Inns of Court specifically to meet Edward Carson in order to sound him out on the idea. Costello later claimed to believe that had O’Higgins lived, “Partition would have ended before 1932.”³⁹

There was plenty in the final report of the Conference for the Irish to be happy about. One recommended change was a simple comma. The King’s Title referred to him being ruler “of the United Kingdom of Great Britain and Ireland and of the British Dominions beyond the seas” and so on. The Conference recommended the removal of an ‘and’ and addition of a comma, so the title would read “Great Britain, Ireland and the British Dominions beyond the Seas”.⁴⁰ Dominions Secretary Leo Amery later recalled “O’Higgins’s persuasive advocacy of the comma and I agreed with his general outlook. I was entirely prepared to accept the wording which indicated the historical difference between Ireland and the younger members of the Commonwealth and at the same time left the door open to eventual Irish unity.”⁴¹ The Conference also accepted the Irish view of the role of the Governor General, who was no longer to be the representative of the British Government but only of the King. In consequence, he would no longer be the channel of communication between the British and Dominion Governments.⁴²

On the Privy Council, the Irish summary of proceedings recorded the British agreement that judicial appeals should be dealt with as the Dominion concerned wished. It also noted that the Irish Free State did not press for an immediate change, “though it was made clear that the right was reserved to bring up the matter again at the next Imperial Conference”—a conclusion that would be challenged by the British, as we shall see below.

But by far the most important conclusion related to Dominion status. The Balfour formula (named after the chairman of the Committee on Inter-Imperial Relations, Arthur Balfour) defined their position and mutual relations as follows: “They are autonomous Communities within the British Empire, equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs, though united by a common allegiance to the Crown, and freely associated as members of the British Commonwealth of Nations.”⁴³ Historian David Harkness wrote that the Declaration was, to the Irish, “of no importance: worse still, it was a distraction from the real issues”.⁴⁴ This may have been the Irish attitude at the time—but the number of times the Declaration was cited in later years in various tussles with the British suggests that it turned out to be extremely useful.

As Costello later wrote, “The legal bonds which formerly bound together the fabric of the old Colonial Empire were to be entirely removed. The doctrine of the supremacy of the Parliament at Westminster and the paramount power of its Statute Law was placed under sentence of elimination”.⁴⁵ He quoted O’Higgins’s words to members of the Delegation who felt more could have been achieved: “It is not the pace that matters, but the direction. It’s a long game, and I would like to see it played out.”⁴⁶ O’Higgins, of course, would not live to see the end of his long game—but Jack Costello would, playing a key part along the way. The first task was to ensure that the British lived up to the agreement.

Attention now switched to the wider international arena. The first test of the supposed equality of Dominions came with a conference in Geneva on the limitation of naval armaments. Clearly the Free State had no interest in the subject matter of the conference—but it had every interest in asserting its international status. Dublin advised London in March 1927 that if the Commonwealth states could not be represented individually, it would be better for the Dominions to abstain from the Conference altogether.⁴⁷Dominions Secretary Leo Amery agreed that each Government would be able to appoint “a separate delegate who would hold a separate full power from His Majesty the King … to negotiate …”⁴⁸ However, it was only after further Irish pressure that he agreed that the British delegation’s Full Power would be limited to the territory of the United Kingdom and the Colonies, rather than covering the Dominions as well. As Joe Walshe pointed out, “for the first time—if they are held to their agreement—the British will sign an international instrument of a purely political character on a basis of complete equality with the Dominions”.⁴⁹ Given the important constitutional issues involved, Costello was named as a delegate, along with FitzGerald as Minister for External Affairs.⁵⁰

In the event, FitzGerald was replaced as Minister for External Affairs by Kevin O’Higgins on 23 June, just four days before the Irish delegation arrived at the conference. They went, in Costello’s words, “to represent at a Naval Conference a country without a Navy”.⁵¹ O’Higgins’s first call in Geneva was to the head of the British delegation, First Lord of the Admiralty William Bridgeman. He explained that Irish interest in the conference “was mainly, if not entirely, based on Constitutional considerations”, and that so long as its constitutional position was “rigidly respected and safeguarded” the Free State would back British technical proposals. Bridgeman agreed with O’Higgins’s conclusion that “nothing should be done during the Conference to obscure in any way the exclusive right of the representatives of each State of the Commonwealth to accept responsibilities … for … their own Government”.⁵²

O’Higgins expressed frustration with the Canadians and South Africans, who “will only fight in support of us. They have not yet learned to take a stand on their own and in any case they only see things when they are pointed out to them.” However, he grudgingly admitted that “they played up well enough yesterday—under tuition”.⁵³ One Irish success related to the naval quotas to be agreed at the Conference. The British wanted a single quota, rather than one for each Commonwealth member, presumably so they could use any spare capacity. O’Higgins was happy enough with this proposal, but persuaded the Canadians to back his suggestion that instead of a quota for the “British Empire”, it should be for the sum total of “all the States Members of the British Commonwealth”, in order to stress their status as individual states. The Irish also forced the British to have a reference to the British Empire removed from the minutes of the Executive Committee. As Joe Walshe noted, “All this shows the necessity for careful watching of all subsequent proceedings …”⁵⁴

Having explained the Free State’s constitutional position “to a roomful of British Admirals, Commanders of Submarines, Gunners and other experts”, O’Higgins felt his work was done, and “relaxed and freely discussed his hopes and future plans” with Costello and the rest of the delegation.⁵⁵ He wrote to his wife that he was “feeling much less the leavings of an election campaign than I was four days ago. I rout out Walshe and Costello at 6.45 every morning and we swim in the lake before breakfast.” They also enjoyed a day trip to the nearby ski resort of Chamonix, where they took a cable car up to the Alps. “Literally our heads were in the clouds—all round about us snow clad peaks glittering in the sun and Chamonix like a toy village down below.”⁵⁶ But, despite the attractions of a short holiday, O’Higgins decided to return home early to get back to his work in Dublin.⁵⁷

In his absence, Costello and Walshe went to a meeting of the Credentials Committee, taking advantage of its informality to sneak a look at the British Full Power “without appearing to have any definite object in view. The Power is in proper form and is restricted territorially according to their agreement with us.”⁵⁸ Clearly the Irish were not taking any chances. But having made their point, and checked up on British bona fides, the work in Geneva was done. Costello went to a couple of meetings, but didn’t speak, before leaving for home.⁵⁹ O’Higgins, meanwhile, had paid a high price for his early return. He left Geneva on 5 July,⁶⁰ apparently spending two days with Hazel Lavery in London on his way home.⁶¹ After he returned to Dublin he was gunned down on his way to Mass, with political and legal consequences examined in the previous chapter.

Costello was to return to Geneva in the autumn, as Primary Irish Delegate to the Assembly of the League of Nations. McGilligan, the new Minister for External Affairs, was originally named as the leader of the delegation,⁶² but the September election made it impossible for him to go. With Costello were the Irish Representative to the League, Michael MacWhite, Diarmuid O’Hegarty and Joe Walshe. The Irish had already been quite active in the League of Nations, registering the Treaty there in 1924 against British opposition—Dublin held it was obliged to register the Treaty as it was an international agreement, while the British took the view that it was an internal matter between two members of the Commonwealth. The Irish had also sought a seat on the Council of the League in 1926, again against British wishes. The point of this was not simply to prove that Britain did not speak for all the Commonwealth members, but also to vindicate the right of small League members to representation. As Desmond FitzGerald put it, “We not only defended Dominion rights but also countries like Austria, Hungary, Bulgaria, Abyssinia, etc. We got the ten votes with British against us … I am quite satisfied that we could have been elected with a proper canvass in good time.”⁶³

In advance of the 1927 Assembly, Walshe suggested another run for the Council. “Only the actual election of another Commonwealth State [i.e. apart from Britain] to the Council will make our independent status in the League apparent at home and abroad.”⁶⁴ It was agreed that the Free State should go forward unless the Canadians decided to do so.⁶⁵ Costello was a member of the Assembly’s First Committee, which dealt with constitutional and legal questions. But apart from being appointed to a sub-committee looking into the question of international arbitration,⁶⁶ Costello made little impact, and the Irish candidacy for the Council was withdrawn in favour of the Canadians.

Costello was back for the following year’s Assembly, as part of a much higher-powered delegation, led by Vice-President Ernest Blythe, and including FitzGerald, now Minister for Defence, and Education Minister John Marcus O’Sullivan.⁶⁷ The First Committee again focused on the question of international arbitration, with Costello strongly backing a proposal for a General Act of the League, claiming that “a great step would have been taken in the development of arbitration throughout the world if that draft should be adopted”.⁶⁸ The British delegate argued that a General Act, rather than a less binding Convention, would be “a source of danger to the League”, but the draft supported by Costello was passed by the Assembly with no substantial modification.⁶⁹ The contrasting Irish and British attitudes to international arbitration were a forerunner of a more serious dispute the following year.

In letters home to his wife, Desmond FitzGerald grumbled that his committee sat in the afternoons, while Costello and the other delegates were free from lunchtime, having sat in the mornings.⁷⁰ It is unlikely, however, that FitzGerald was short of social diversion. He had written home in 1926 that “shyness is not a feature of diplomatic women—on the first meeting one may easily learn how often their husbands perform with them or how they like it done”.⁷¹ Such considerations seem unlikely to have occurred to the other members of the delegation. Michael MacWhite, the permanent representative to the League, was more concerned with the image of Ireland at Geneva. He complained that “the voice of the Saorstát has been scarcely heard in the Reformation Hall”. A similar reticence was evident in the various committees, although he charitably gave the Irish members credit for exercising influence “in conversations with other delegates, in supporting proposals corresponding to our ideas and by a discriminating use of the vote … In the long run, however, it is only those States whose representatives participate actively and openly in the general work of the Assembly who count …” He advised another run for a Council seat when Canada’s term expired in 1930, arguing that Irish chances would be boosted if it were to sign the Optional Clause of the Permanent Court of International Justice⁷²—a question that was to dominate the 1929 Assembly.

The Optional Clause committed signatories to submit international disputes to the compulsory jurisdiction of the Permanent Court of International Justice. The Court, which sat at The Hague, had been provided for in the Covenant of the League. It was inaugurated in 1922, and dissolved in 1946, when it was succeeded by the International Court of Justice.⁷³ In 1924, Ramsay MacDonald’s first Labour Government made moves towards accepting the Court’s compulsory jurisdiction, although there were concerns about the British Empire’s position in time of war.⁷⁴ The matter was shelved when the Tories came back to power, and at the 1926 Imperial Conference it was agreed that none of the Governments represented there would accept compulsory jurisdiction “without bringing up the matter for further discussion”.⁷⁵

However, shortly after resuming office in June 1929, MacDonald informed the Dominions that he felt it was time to accept the Court’s jurisdiction, although he made it clear that Britain would sign with reservations.⁷⁶ These included the exclusion of disputes either submitted to or under consideration by the Council of the League. The British felt this would allow them to avoid making a specific reservation about disputes between belligerents at sea, as such disputes would inevitably come before the League Council. They also rejected as unnecessary an Australian suggestion that disputes between members of the Commonwealth should be excluded. The British held that “the declaration only accepts the jurisdiction in international disputes”.⁷⁷ In other words, the British still did not accept the full sovereignty of the Dominions. McGilligan said the Free State wished to sign with as few reservations as possible. He also pointed out that the conclusions of the 1926 conference did not imply that a general agreement was needed before a member of the Commonwealth could sign.⁷⁸

The Irish believed the British were intent on reviving what was called the inter se doctrine. This phrase, literally meaning “between or among themselves”, held that disputes between members of the Commonwealth were internal, rather than international. They also objected to the British proposal to restrict jurisdiction to matters arising after ratification—which would obviously exclude disputes relating to interpretation of the Treaty.⁷⁹

A lengthy memorandum by Costello outlined the sequence of events in Geneva. MacDonald managed to offend many of the Dominions at a meeting of the British Commonwealth delegations on 1 September, using language which “generally assumed paternal responsibility for all the Commonwealth Delegations. This attitude caused obvious resentment on the part of Canada, South Africa and ourselves and even on the part of Australia.” The British subsequently blamed MacDonald’s faux pas on his unfamiliarity with the Dominion position, but it was a bad start. The Prime Minister wanted to make an announcement at the League Assembly that Britain and all the Dominions had decided to sign the Optional Clause, believing this would “have a tremendous moral and psychological effect … He appeared to be tremendously anxious to create somewhat of a stir by his announcement …” McGilligan quickly put a stop to this suggestion. He also objected to the proposed British wording for acceding to the Optional Clause, claiming it had been designed to exclude intra-Commonwealth disputes from the jurisdiction of the Court. This was stoutly denied by MacDonald, who called in the Foreign Office legal adviser, Sir Cecil Hurst, to explain. To the Prime Minister’s evident discomfort, Hurst confirmed that the Irish suspicions had been absolutely correct.⁸⁰ While Hurst’s attitude came as a surprise to MacDonald, the Irish were well aware of his views. The previous March, he had argued at the League of Nations Committee of Jurists that disputes between two Dominions could not be brought before the court as they “were not international”.⁸¹

A major disagreement ensued on whether Dominion disputes should or could be referred to the Court. The Irish delegates outlined their political problems—it would be portrayed as a surrender of sovereignty if they gave away even a theoretical right to bring a dispute with Britain to the Permanent Court. At McGilligan’s suggestion, a sub-committee of Costello, Hurst, the South African Eric Louw, and the Australian Sir William Harrison Moore was set up to look at what sort of acceptable alternative to the Permanent Court could be established to deal with Commonwealth disputes. Having first cleared his suggestion with Costello, Louw proposed that the members of the Commonwealth should agree not to refer any disputes to the Permanent Court pending the next Imperial Conference.⁸²

The matter was then referred to a full meeting of the Commonwealth delegations. The British suggested they should make a statement indicating that the reservations they attached to their signing of the Optional Clause had no effect on the international standing of the Dominions established at the 1926 Imperial Conference. Costello pointed out that nobody had suggested the British were trying to repudiate the 1926 Conference, and that their proposed statement was “in essence an insult to the British Government under their own hands”. The Foreign Secretary, Arthur Henderson, “at this stage got greatly annoyed and stated that the British Government were entitled to insult themselves if they liked”.⁸³ It wasn’t the last time Costello would get under the skin of a British Labour politician.

Faced with this impasse, the Irish decided to go ahead and sign the Optional Clause without reservations. Costello advised that the British should be given as little notice as possible, “so that they would not be in a position to make an effort to obtain a group signature”. McGilligan signed at 3.30 p.m. on Saturday 14 September 1929.⁸⁴ Having concluded their work in Geneva, Costello and McGilligan now turned their attention back to London, where an attempt was to be made to tease out some of the technical issues left over from the Imperial Conference of 1926.

Chaired by the Dominions Secretary, Lord Passfield (formerly Sidney Webb), the official title of the meeting was the Conference on the Operation of Dominion Legislation and Merchant Shipping Legislation. It opened on 8 October and finished on 4 December—a long time, but valuable from the Irish perspective because it set the ground for the 1930 Conference and the 1931 Statute of Westminster. McGilligan led the Irish delegation, with Costello in a very prominent role, along with O’Hegarty, Walshe and Hearne.⁸⁵The Irish once again refused the British offer of hospitality during the conference.⁸⁶

As John Hearne observed in advance of the conference, the merchant shipping legislation and the Colonial Laws Validity Act “illustrate the system which is now obsolescent better than any other statutes that we know”. The 1894 Merchant Shipping Act limited the power of a Dominion to alter the Act, requiring the King’s permission before changes were made.⁸⁷ The practical effect was that the Free State had been unable to legislate in this area, and while the tricolour was flown on Irish ships, it was not legally recognised.⁸⁸

On the eve of the conference, Costello wrote to Education Minister John Marcus O’Sullivan reporting on meetings with the South African and Canadian delegations. The former were “quite sound on all points” and “were entirely ad idem with us”. They agreed that everything contrary to the declaration of equality agreed in 1926 must go: reservation (under which Dominion legislation couldn’t come into force until the British had approved it); the Colonial Laws Validity Act; restrictions on extraterritorial and shipping legislation. He was agreeably surprised by the Canadians: “Their attitude is more satisfactory than we ever dared to hope for. If they stick to their present intentions we ought to have a clean sweep.” There was one potential fly in the ointment, though, which Costello explained with typical hyperbole. The British wanted special arrangements under which all Dominion Parliaments would agree on certain matters, such as the succession to the Crown. As Costello explained, the Irish had a difficulty with the provision relating to the religion of the monarch (who could not be a Catholic). But the Canadians said “if that point is raised by us they must go home at once. At a recent provincial election a Liberal Government was swept out of office in a Liberal Province by a Ku Klux Klan performance on a religious issue, of less importance than the religion of the King.” The Canadians feared a political backlash at the next Federal election if religion became a Commonwealth issue, and Costello felt that as they “are so friendly and so intent on making constitutional advances we cannot afford to put them in a hole politically”.⁸⁹

The British too had their problems, and just over a week after the opening of the Conference, Passfield called an emergency meeting of Heads of Delegation. He warned that unless he received assurances on certain issues, he would have to advise his Cabinet the following week “that there was no likelihood of a unanimous report emerging from the main Conference”. His intervention was sparked by discussions that convinced him he couldn’t “join in the recommendations that were obviously in the minds of certain of the Dominion delegations”. The key difficulty concerned the Crown—he wanted the report to confirm the maintenance of the existing legislative structure, and to promise consultation between all Dominions if any change was proposed.⁹⁰ The Irish delegation felt they should not jeopardise the report by “making trouble” on the issues involved, “provided the British proposals … are not substantially altered for the worse”, and this approach was approved by the Executive Council.⁹¹

Costello’s main role was on the committee looking at the Colonial Laws Validity Act. The Committee was named after its chairman, Sir Maurice Gwyer, the British Procurator General and Treasury Solicitor (a senior legal advisor to the Government). At the first meeting, the minutes recorded the general view that the parliament of a Dominion should not be given power to alter the fundamental provisions of its constitution. Costello wrote on the minutes that both he and the South African delegate had objected to this statement, but their objections were not noted.⁹² Three days after this first meeting, Gwyer produced a draft of the law which would become the Statute of Westminster. He included a provision excluding Dominion Parliaments from amending their constitutions.⁹³This was clearly going to be a major source of tension between the Irish and South Africans and the rest.

Diarmuid O’Hegarty reported to Dublin that progress on various issues, such as shipping, extraterritoriality and reservation, was “rather satisfactory”. But in relation to the Gwyer Committee, he pointed out that while the Colonial Laws Validity Act would be repealed, three matters had not been settled: the reference to the Crown; the amendment of Dominion constitutions; and the suggestion of a Commonwealth Court. He explained the British worry that with reservation and the Colonial Laws Validity Act gone, the Irish “could repeal any law of the Imperial Parliament in so far as it relates to us, including the laws relating to the Crown”. The British viewed the Treaty as being based on British law (a view the Irish did not accept, as they saw it as an agreement between two states) and therefore vulnerable to amendment in the new dispensation.⁹⁴ Costello, then, was in a central position, dealing with the most contentious issues facing the Irish.

On 12 November Costello flatly rejected a British proposal for a permanent Commonwealth Court to arbitrate in disputes between governments. To his fellow lawyers on the Committee, he poked fun at judges in general: “We must leave a Permanent Court out of mind. How would a Permanent Court consisting of judges set to work? We all know what judges are, how they spread themselves and deliver judicial homilies, but I cannot say judicious homilies.”⁹⁵ However, he said he would consider an ad hoc body of at least five members.

Two days later, he raised the issue of the King’s religion—which the Canadians had claimed would lead to them walking out of the conference and going home (it didn’t). He explained to his colleagues that if his Government had to introduce legislation relating to the religion of the King it would “inevitably raise a religious discussion”. He argued that instead of legislation, there should be a declaration of the Imperial Conference that the succession would not be altered without the consent of all the Dominions. The Australian delegate, Sir William Harrison Moore, objected that this would not be enough, as any Dominion could simply legislate to remove the Crown entirely. To which Costello replied, foreshadowing de Valera’s introduction of the External Relations Act, and his own repeal of it, “Then you just walk out of the Commonwealth …” The South Africans indicated their view that they already had the right to secede. Gwyer complained that Costello’s proposal would create seven Crowns, one in each of the Dominions, rather than the “one undivided unified Crown” which the British believed existed for the whole Commonwealth.⁹⁶ This was precisely the principle the Irish were trying to establish—a “several” rather than a unitary Crown, to recognise the complete independence of the members of the Commonwealth.

At a further session, Costello claimed the Irish were taking “a big political risk in going into this question of an agreement relating to the Crown”. In return, they wanted to be sure that there would be no exceptions to the repeal of the Colonial Laws Validity Act—that all of the Dominions would have the right to repeal any British statute which had been passed applying to them. He said the Free State could repeal its constitution in its entirety, but that the Treaty would remain, a document which had for them “a certain sacredness, as those who have followed events in the Irish Free State during the past few years must know” (which would not be much consolation to the British if the opponents of that document came to power). Rather than a “rigid” and “formal” legal approach, the Irish sought uniformity through agreement and reciprocal action. He had made a number of suggestions to Gwyer the previous evening about how the draft Bill (the future Statute of Westminster) should be drawn up. Gwyer said he “was impressed by his views, and I think we could put down something … designed to meet points discussed between Mr Costello and myself last night”.⁹⁷

This co-operative atmosphere disappeared very quickly, however, after the publication of a document following a Heads of Delegation meeting on 17 November which stated that the report would be an experts’ report only. At the following day’s session of the Gwyer Committee, Costello claimed this meant they were precluded from considering political questions at all. “The Irish delegation were prepared to make agreements upon the Crown and any other matters that might call for an agreement. We were prepared to give way here and there for the sake of getting an agreed report. But if this is to be an experts’ report merely, I will not take part in discussion of any single topic that is of a political character.” The Canadian Oscar Skelton agreed that it was “a preposterous document, radically erroneous and impossible of acceptance by us”.⁹⁸

When Gwyer suggested continuing with the work, and allowing the conference to make the decisions, Costello testily replied, “We have met the British Government everywhere, and at every stage when an agreement seemed to be in sight something was done—I do not say deliberately—but something was definitely done which prevented agreement from being arrived at.” He went on to accuse the British of “stirring up religious war … I would not have it on the records of my Department that I had signed a document … related to the Crown and yet did not raise the question of the religion of the King at all. Surely, Sir Maurice, you realise what would be said …” He agreed to Gwyer’s suggestion that they continue, in the legal phrase, “without prejudice”, but observed that they were further away from agreement on certain issues than they had been a few days before.⁹⁹

The Committee then moved on to consider a British proposal that the final report should contain an undertaking that the Free State regarded the terms of the Treaty (or “Articles of Agreement” as the British insisted on calling it) “as so fundamental in character as to be inviolable and beyond the scope of the ordinary law”. Costello again dug his heels in, saying McGilligan would not be prepared to sign a report containing this provision. He was again supported by Skelton. Costello also objected to what he saw as a suggestion that the Free State Constitution derived from an Imperial statute. He said the relevant paragraph was unacceptable—and so the Committee agreed to defer discussion on its application to the Free State.¹⁰⁰

The day’s discussions ended with nationality—a question which Costello observed with commendable understatement “has been causing us a certain amount of difficulty for 700 years or so”. He rehearsed the Irish case that they were “a mother country, an unadulterated nation”. He referred to the difficulties they had with the British regarding passports. London wanted the expression “British subject” used; Dublin felt “Irish national” was sufficient. Costello insisted that separate nationality must be recognised, arguing that if someone qualified as an Irish national, then the status of “British subject” would be implicit in that. He also used the analogy of shipping. The Conference had heard suggestions of a common status of ships registered in the various ports of the Commonwealth—could something similar not be done for nationality?¹⁰¹

Gwyer returned to the paragraph relating to constitutional change two days later, asking Costello if he had any alternative to propose, but the Irish Attorney General stonewalled, saying the “time has not come for me to make any suggestion … I have already indicated my views on that paragraph.” However, despite what might have been seen as an obdurate approach, it was Costello who was asked by Gwyer to draw up a rough draft of the matters that had been agreed. He said he would, but took another pot shot at the British, claiming there had been a lack of clarity in previous drafts that caused confusion. When the British suggested there had been a moment when the delegates had been in agreement, Costello replied, “On which of the five drafts?”¹⁰²

The final draft specifically excluded the right to amend the constitutions of Canada, Australia and New Zealand¹⁰³—but crucially did not extend the exclusion to the Free State or South Africa, an omission that would later be challenged by Winston Churchill, as we will see below. On the proposed Commonwealth Court, the Gwyer Committee recommended further discussion, but again agreed with the Irish view that it should be an ad hoc, rather than permanent, tribunal, and that it should be limited to disputes between governments.¹⁰⁴ In other words, it would not be the Privy Council by another means. At the final session of the main conference, at which the report was agreed, McGilligan paid tribute to the work of the Gwyer Committee, which he said had the most difficult task of all those set up by the Conference. The Irish Minister also hailed the progress of equality and free association, saying the obstructions to co-operation “were removed as far as principles are concerned by the Report of 1926, and removed in detail by the Report we now have before us, and when that Report comes to be accepted next year at the Imperial Conference it will, I think, prove very definitely to be the last remaining obstacle to the freest co-operation with all the members of the British Commonwealth of Nations”.¹⁰⁵The report, according to David Harkness, “was both an end and a beginning. It marked the destruction of the old Empire as well as the creation of the new Commonwealth.”¹⁰⁶

As the 1930 Imperial Conference approached, the British circulated a detailed agenda, covering a wide range of issues, including trade, agriculture, research, statistics, transport, communications and overseas settlement. Joe Walshe noted with considerable suspicion that the agenda “is drawn up on a much more comprehensive scale than has ever before been attempted, and it gives the definite impression that some sort of centralisation on the economic side is to be attempted”. He advised an urgent critical examination of the proposals.¹⁰⁷ As Attorney General, Costello was closely involved, with Walshe forwarding him an economic policy document from the Federation of British Industries before it was sent to ministers.¹⁰⁸ He was not, however, a member of the official delegation, which was made up of McGilligan, FitzGerald and Agriculture Minister Patrick Hogan.¹⁰⁹ Cosgrave’s possible attendance was left open,¹¹⁰ but in the event he was ill at the time of the Conference (he complained to McGilligan that he had been sick in bed for four days, although it appears he was suffering from nothing worse than a bad cold).¹¹¹

The Irish were interested in constitutional, rather than economic, matters. Some weeks before the Conference opened, McGilligan wrote to Dominions Secretary Jimmy Thomas outlining the issues he wanted brought up. He was particularly forthright about the Privy Council: “The existence of an extra-State institution claiming without any form of democratic sanction to exercise jurisdiction in the … internal affairs of the Irish Free State remains a menace to our sovereignty.” The Irish were also concerned at the lack of direct access to the King for Dominions, believing that advice to the monarch should come direct from the government concerned, not through the British. They wanted to clarify the inter se applicability of treaties to remove any misconception that the members of the Commonwealth constituted a single sovereign State. And they wanted direct communication with foreign governments, rather than having to go through the Foreign Office in London. McGilligan concluded that “the elimination of the foregoing difficulties at the Conference will allow the delegates to examine with freer minds the important economic problems which are listed for their consideration”.¹¹²

A confidential briefing note from the Department of External Affairs for the delegates put direct access to the King at the top of their concerns, because “the defective channel of access is at the root of all the difficulties in the way of the external self-expression of the Dominions”. Royal approval for diplomatic documents was only given after a British Secretary of State signified his agreement—which naturally led foreign governments to see the Commonwealth as “an organic unit” rather than a collection of independent, sovereign states. The obvious solution was to have such documents issued in the name of the Governor General rather than the King—but the Irish recognised this would “perhaps be too much to expect the British to accept”, and suggested that the Dominion High Commissioner in London should convey his government’s advice directly to the King, without going through the British Government. The briefing also highlighted nationality (the Irish wanted to eliminate the description “British subject”, while at the same time ensuring that Dominion nationals obtained all the rights and privileges enjoyed by British subjects) and the Privy Council, “the only operative Imperial institution which can be said to make of the Commonwealth a legal and constitutional unit, as distinct from the Diplomatic Unit created by the unified control of the King’s external acts …”¹¹³ Finally, the Irish wanted to ensure that when negotiating treaties, the British Government did not “purport to act for the nationals of all the members of the Commonwealth”, as this would imply the Commonwealth was a single sovereign state.¹¹⁴

The South African Prime Minister, General Hertzog, believed the forthcoming Conference should, and would, confirm the right of Dominions to secede from the Commonwealth. He regarded such confirmation as a test of constitutional liberty—if the Dominions truly were free, they should be free to leave the Commonwealth. Joe Walshe believed such a declaration would be “the logical result of all that the Irish Free State has been urging” in relation to the Commonwealth. He also suggested that such a declaration “would enable the Irish Free State to get out of Articles 1 and 2 of the Treaty without laying herself open to the charge of having broken them”. Article 1 gave the Free State the same constitutional status in the Commonwealth as the other Dominions, while Article 2 stipulated that it would have the same relationship to the Crown as Canada. However, Walshe went on to point out that even if Ireland was able to “get out” of the first two articles in this way, it wasn’t clear whether the rest of the Treaty—for instance Article 7 on defence—would stand.¹¹⁵

The Conference opened on 1 October 1930, with British Prime Minister Ramsay MacDonald in the Chair. In his opening statement, McGilligan once again stressed the importance of constitutional issues. “For us the recognition of our position as a free and sovereign State comes before all other considerations … While certain elements of the old system of Imperial control were maintained, even though it was only in form, the will to co-operate was correspondingly weakened … I should not be frank with you if at this juncture I did not definitely place before you in what seems to my Government to be the proper perspective the considerations which should govern the proceedings of this Conference.”¹¹⁶

Abolition of appeals to the Privy Council was to prove one of the most contentious of these items. McGilligan was ingenious in his arguments, suggesting that retention of the appeal helped opponents of the Treaty, negated the 1926 declaration of autonomy, and did nothing to help Southern loyalists. The latter, he argued, had eight years’ experience of the Free State, and “have suffered no indignities and no injustice”.¹¹⁷ In response, the British claimed that Article 2 of the Treaty, which said the Free State’s relationship to the Crown would be the same as that of Canada, meant that it would be the same as Canada’s had been in 1921.¹¹⁸ In other words, any advances secured by the Canadians after that date would not apply to the Irish.

It is difficult to believe the British actually meant this seriously, particularly as the Lord Chancellor, John Sankey, had the previous year delivered a landmark Privy Council decision in a Canadian case which established the “living tree doctrine”. This holds that a constitution is organic and must be read in a broad and liberal manner so as to adapt it to changing times.¹¹⁹ The British were attempting to establish one law for the Canadian goose, and another for the Irish gander. Costello was well aware that this trick had been tried before—the previous year, he had sought the advice of Chief Justice Hugh Kennedy on a number of matters raised at the Gwyer Committee. Kennedy had advised him that during the discussions in London on the draft Free State Constitution in May and June 1922, the British tried “to pin us to the old out of date Canadian text … the result of our stand of Michael Collins’ ‘quality’ was a complete climb down on their part and a … full admission of our right to the benefit of every constitutional advance made by Canada …” He added that the British also tried unsuccessfully to include in the Free State Constitution “the now purely technical limitations on the amendment of the Canadian constitution”—another issue that would be raised again in 1930.¹²⁰

Costello accompanied McGilligan to a meeting of Heads of Delegations on 6 October, at which British Attorney General Sir William Jowitt argued that the Treaty meant the Irish were in a different situation to the other Dominions. “The matter was therefore one of contract, part of a bargain then entered into. He could not see how a contract could be derogatory to status …” McGilligan pointed out that even if the Privy Council appeal was in the Treaty (which he didn’t accept), it could be abolished in the same way as reservation was going to be abolished. Thomas rejected this view. If that was their position, Costello asked, why had the British not objected to the Irish Land Act of 1926 (which, as we have seen, circumvented a Privy Council decision) as also being contrary to the Treaty? Thomas weakly replied that the lack of protest didn’t mean they acquiesced in either the Land Act or in legislation to remove the appeal.¹²¹

Other matters, meanwhile, had been referred to a committee under Sankey—advice to the King, the appointment of Governors General, and the issue of diplomatic documents.¹²² As Desmond FitzGerald observed, “practically all the substantial points” were referred to it. “It is called a legal committee, no doubts because most of its members will not be lawyers.”¹²³ In fact the initial name, the “Politico-Legal Committee”, was changed to the more descriptive “Committee on Certain Aspects of Inter-Imperial Relations”.¹²⁴While McGilligan made most of the running on this committee as well as in the Conference, Costello played a useful supporting role. On the question of treaties, he attacked the existing practice, claiming it implied that the Commonwealth was “contracting as one party irrespective of the autonomy of the separate members of the Commonwealth … unless and until that implication was definitely put on one side there would always be the liability of friction in the future”.¹²⁵ When the protection of minority rights was raised as a reason for retaining the Privy Council appeal, Costello told Sankey that no-one in Ireland made that argument; it was only put forward in England.¹²⁶

The Irish were less than impressed with the performance of the British. Desmond FitzGerald complained that MacDonald and Thomas “were badly briefed … with myself and P. McG. [McGilligan] acting as technical advisers to the whole lot”.¹²⁷ On another occasion, he observed, they “had (or pretended to have) the wrong end of the stick. I told them that I had dealt with the matter in 26 and what the circumstances were. MacDonald said I was wrong and proceeded to prove it by reading from the report—and landed on a sentence that proved what I said. That sort of thing happens constantly—and makes them irritable …”¹²⁸ They took a particularly dim view of Jimmy Thomas, who was “legendary for his tactlessness, his indiscretion, his volatility and his bright, breezy vulgarity. He was also notorious for newspaper leaks, drinking, gambling and snobbery. In a prim, staid government where these qualities were in short supply, Thomas stood out, beloved by many (including the King) and loathed by others, including most of the dominion prime ministers.”¹²⁹ After one conversation with the Dominions Secretary, FitzGerald reported he “heard more blasphemy and general bad language than for a long time. ‘Bloody’ was general …”¹³⁰ Thomas was incredibly tactless; Irish diplomat Freddie Boland recorded that he went up to Sir Samuel Hoare at a garden party in Buckingham Palace and asking him how “Lady W” was. The response, if any, was sadly not recorded.¹³¹

As well as the conference work, there was the usual round of social engagements, including a dinner at Buckingham Palace. Having recovered from the “bad shock” of a missing pair of breeches (which were found),¹³² FitzGerald reported that the Irish delegation “ostentatiously fasted … as we felt that it was bad form for them to have had it on a Friday”. The fasting was purely for effect—they ordered up tea and rolls as soon as they got back to their hotel.¹³³ There were less formal pursuits too, including ice-skating, where FitzGerald amused himself by talking to a young woman. “Of course the others were all tickled. I should have preferred if she had been better looking and more amusing—brighter. But we got on terms that nearly produced her life history …”¹³⁴ It is highly unlikely that John A. Costello spent his time chatting up young women—in any case, his wife joined him for at least part of the time in London. With a characteristic mixture of elitism and self-satisfaction, FitzGerald wrote home after a conversation with her, “Mrs Costello a bit of a bore—but I get on all right I think …”¹³⁵

As October drew to a close, Sankey prepared a draft report, to which the Irish vehemently objected. They rejected the suggestion that international conventions would not apply between members of the Commonwealth (unless they specifically agreed that they should apply), feeling it implied that the Commonwealth was “a single sovereign State”.¹³⁶ But the most serious issue was nationality, which Costello later said “caused more bitterness between this country and the British Government … than any topic discussed from 1926 to 1930”.¹³⁷ McGilligan told a meeting of heads of delegations that Sankey’s suggested formula was “politically impossible”. The Lord Chancellor had proposed the wording “Every national of the Irish Free State is hereby declared to possess the common status of a subject of His Majesty by virtue of the allegiance which he owes to His Majesty as a national of the Irish Free State.” The Irish were seeking a recognition that Irish nationality sprang from its own nationhood, but that it could be reconciled with common status under the Commonwealth. The British took a strong line against the Irish, with MacDonald accusing them of proposing to “sweep away the basis on which the common status rested … if it became non-existent for one, it would become non-existent for all”.¹³⁸

Frustrated at the failure to deal with the Privy Council question, McGilligan and FitzGerald went to MacDonald to insist that it be raised, “as it was a matter of vital importance”.¹³⁹ But at the following day’s meeting of heads of delegations, MacDonald requested a postponement so that he could gauge opinion in the House of Commons. He observed that two of the key participants in the 1926 conference were now dead (i.e. O’Higgins and Birkenhead), and he asked McGilligan “to give him a statement which would strengthen his hand when he saw the leaders of the Opposition”.¹⁴⁰ McGilligan duly wrote a letter, explaining that the Irish agreed not to pursue the Privy Council matter in 1926, after Birkenhead “urged strongly that we should not then press it to a conclusion, as he had already taken great political risks through the support he had given us and as a certain section of his party were filled with distrust of our every action … If Mr O’Higgins would agree to that, he, Lord Birkenhead, would promise him the full weight of his support when the matter was brought up at the next Imperial Conference.”¹⁴¹

The principals were dead, but there were two other witnesses who attended the breakfast meeting in Birkenhead’s house. They were the English and Irish Attorneys General at the time, Sir Douglas Hogg and John A. Costello. The latter, of course, was still in office and at the 1930 Conference; the former, now Lord Hailsham, was in opposition. The Irish were convinced—correctly, it would appear—that MacDonald, Sankey and Thomas were “in constant consultation” with Hailsham. MacDonald even passed a note to McGilligan suggesting that Hailsham should be invited to join the discussion in Downing Street so that he could state what had taken place in 1926. The Irish Minister, believing the Conservative was being invited “for the purpose of arguing Article 2 of the Treaty against the Irish Free State delegates”, rejected the suggestion.¹⁴²

MacDonald reported the following day that he had met Baldwin and Hailsham, who insisted that the Free State had given guarantees to Britain about the rights of the minority, including the right to appeal to the Privy Council against a decision of the Irish courts. The Prime Minister said the Opposition would oppose the Statute of Westminster on the grounds that it would allow the Free State to abolish the appeal without agreement. McGilligan replied angrily that it was “monstrous” to suggest abolition of the appeal would break the Treaty. Sankey said nobody wanted to go back on what had been agreed in 1926, but equality of status did not entitle the Free State to break the Treaty. McGilligan pointed out that the cases so far referred to the Judicial Committee had nothing to do with southern Loyalists—one involved a Swedish paper company, another unemployment insurance (see Chapter 3). He said, “the acid test of the sincerity of the 1926 declarations was the question of appeals … If they had not the freedom which had been given to all the rest, the consequences were going to be very serious.”¹⁴³

FitzGerald described the meeting as “appalling. Massed British guns directed on us … Faced with dishonesty, treachery and cowardice.” The one bright spot was the support of Australia’s Scullin and Hertzog of South Africa. “Thomas completely dishonest and treacherous. Ramsay contemptible … Tody [McGilligan] told off old Sankey so much in the morning that he did not appear in the afternoon. Probably told that his presence might annoy us.”¹⁴⁴ Even more likely to annoy the Irish delegates was the Lord Chancellor’s attempt to outflank them with an indirect approach to Cosgrave. At the opening of Parliament on 28 October he had met Lord Granard (who, as we saw in Chapter 3, was a member of the Irish Senate as well as the House of Lords) and asked him to convey a proposal to the President.¹⁴⁵ Sankey suggested that the Irish introduce legislation to abolish the appeal, “on the understanding that the British Government would not take any steps to oppose it”. Cosgrave sent Michael McDunphy, the Assistant Secretary to the Executive Council, to London to confer with the delegation, who viewed the move as “a dishonest attempt to sidetrack the official delegation”. McGilligan felt the Government would be bound to bring in legislation after the Conference, “irrespective of what action the British Government were disposed to take in the matter”.¹⁴⁶ Cosgrave duly informed Granard that “he was very reluctant to interfere with Mr McGilligan, and that, if he did interfere, it would only be to stiffen the hands of the latter, that members of the Council at home held very strong views”.¹⁴⁷

Diarmuid O’Hegarty, in London with the delegation, evidently held very strong views too. He urged “an extremely stiff front … Sankey is entirely untrustworthy.” He added that the argument that the Treaty was “static” was “the most serious breach of faith with which we have yet been faced”.¹⁴⁸ In Dublin, meanwhile, an aeroplane was put on standby in case of the need for “urgent personal contact with the delegation”¹⁴⁹—a fairly dramatic move in the context of the times. In a letter to Granard, which he presumably expected to be passed on to the British, Cosgrave expressed his “amazement that Lord Hailsham’s recollection of the meeting does not appear to coincide either with what Mr O’Higgins told me at the time or with the present recollection of our Attorney General … I begin to see now what was in Mr O’Higgins’ mind when he used the phrase—‘I wonder will they keep their promise’.”¹⁵⁰ This remark had been made to Costello a few days before O’Higgins left the 1927 Naval Conference in Geneva, shortly before his death.¹⁵¹

The performance of the Labour Government was quite extraordinary. As Costello was to point out later, the Irish got more help from “the representatives of a Conservative Canadian Government … in striking contrast to the conservative attitude of the British Labour administration”.¹⁵² Sankey’s attempt to outflank the Irish delegation in particular was badly judged, ill-timed and counterproductive, and left the British on the defensive. At a meeting of heads of delegation on 13 November, FitzGerald pointed out that the Treaty had been accepted on the basis of statements by Lloyd George that their status was not static. “If these statements were not made in good faith, the whole basis was altered and the Irish Free State was not a member of the British Commonwealth.” Costello chipped in the observation that in 1926 the Colonial Laws Validity Act was still in force, and that the whole situation had now been altered in this respect. When Scullin of Australia asked if the repeal of the Validity Act would give the Free State the same rights as Canada, Jowitt said it would, “so far as legal rights were concerned, but there were also what might, for want of a better word, be called ‘moral’ rights”.¹⁵³ In his concluding speech to the final meeting of the Conference the following day, McGilligan was distinctly frosty, saying it would take time for the results of their work to be seen, and it was only as they saw those results that they could decide whether Irish willingness to co-operate would increase or not.¹⁵⁴

As we have seen in the previous chapter, Costello was asked early in 1931 to draft a Bill to abolish the right to appeal, but the legislation was not actually introduced until after the change of government. However, despite the failure to make progress on the Privy Council and related issues, the 1930 Imperial Conference did endorse the Statute of Westminster and the British agreed to put it through Parliament. They even agreed to McGilligan’s request that the date for it to come into operation should be 1 December 1931. This was to allow the Irish Government to introduce the Merchant Shipping Bill and get it into committee before Christmas of 1931. McGilligan believed this would be “very important to them from a political point of view, having regard to the coming General Election”.¹⁵⁵

By the time the Statute came before the British Parliament, there had been huge changes in the British political scene. After the Labour Cabinet split over spending cuts in the midst of the Depression, MacDonald formed a National Government in August 1931, which won a massive election victory that October. Ironically, from the Irish point of view, the three British politicians they trusted least, MacDonald, Thomas and Sankey, retained their respective positions as Prime Minister, Dominions Secretary and Lord Chancellor. The Government had a huge majority, but was vulnerable to pressure from Conservative backbenchers, many of them deeply unhappy with the idea of loosening the bonds of empire. The Statute prohibited the parliaments in Australia, New Zealand and Canada from amending their respective constitutions. During the second reading in November 1931, Winston Churchill signalled an amendment which would add a prohibition on altering the Irish Free State Constitution. So far, so predictable. But in reply, Thomas said that “every consideration will be given … to all that has been said here today, and … the Government will be asked to consider the whole situation in the light of the Debate that has taken place”.¹⁵⁶

Given the experience of the 1930 Conference, it was not surprising that Dublin was seriously worried. Cosgrave wrote to MacDonald, warning that such an amendment “would be wholly unacceptable to us … the interests of the peoples of the Commonwealth as a whole must be put before the prejudices of the small reactionary element in these islands”.¹⁵⁷ McGilligan wrote in even more trenchant terms to Thomas: “I cannot conceive anyone except the most rabid reactionary desiring to reopen old sores and recreate the feeling of unrest and disturbance between our peoples all over the world. I do not believe that Mr Churchill has that desire. If he had he would not have signed the Treaty … the Treaty will be observed by the people of this country so long as it is a free instrument. If it becomes overshadowed by the slightest suspicion of external legal restraint it loses its free character, is no longer the same instrument and must inevitably defeat its original purpose.”¹⁵⁸

Thomas told the Irish High Commissioner, John Dulanty, that he had been “playing for time”, because “practically nobody was in the House except the Diehards and … he was determined that … the Bill should not be defeated on the second reading”. In his defence, he also pointed out that he had said the Government would give consideration—rather than favourable consideration—to the proposed amendments.¹⁵⁹ Ramsay MacDonald told Dulanty he agreed with Cosgrave’s letter, and said de Valera would be “jubilant” over Churchill’s speech, which he described as “one of the most mischievous speeches ever made in the House of Commons”.¹⁶⁰ His formal reply to Cosgrave said he would not alter the Bill “unless the Government itself is defeated”.¹⁶¹ After minor amendments, the Statute received the Royal Assent on 11 December 1931.¹⁶²

The Statute has frequently, and fairly, been described as a triumph for the Cosgrave government. It implemented many of the demands pursued by O’Higgins, McGilligan, FitzGerald and Costello over the previous decade. The Colonial Laws Validity Act no longer applied; no Dominion legislation would be declared void because it conflicted with English law; Dominion parliaments had full power to introduce legislation with extra-territorial scope; laws passed at Westminster would not apply to Dominions unless they requested that they should.¹⁶³ In Costello’s words, its passage “marked the final crumbling of the legal theory on which the Constitution of the Old British Empire rested … The King, the bogey used by Anti-Treaty politicians, became a symbol of the fact that the states members of the Commonwealth were associated in that community … by their own free will.”¹⁶⁴

Another tribute to the progress made came from an unexpected quarter. In the Seanad in June 1932, Eamon de Valera, then President of the Executive Council, acknowledged that “the 26 Counties … as a result of the 1926 and 1930 conferences, had practically got into the position—with the sole exception that instead of being a Republic it was a monarchy—that I was aiming at in 1921 for the whole of Ireland … I am prepared to confess that there have been advances made that I did not believe would be made at the time.”¹⁶⁵ And while de Valera in office ignored the Statute of Westminster, there is no doubt that it cleared the path for his constitutional changes in the following years.¹⁶⁶ His Attorney General, Conor Maguire, advised him that the Government had the power to remove the Oath, because “from the British point of view … the passing of the Statute of Westminster leaves it open to the Irish Free State to amend the constitution in any way it pleases”.¹⁶⁷ Ironically, this view was confirmed in 1935—by no less a body than the much resented Privy Council.¹⁶⁸

Costello’s role in the development of the Free State’s international status was significant of itself, but it is also of interest for what it tells us about the background to the Declaration of the Republic in 1948. Nicholas Mansergh argued that Cumann na nGaedheal, “while much preoccupied with the ending of all elements of continuing subordination, continued to think of Irish fulfilment within the Commonwealth”.¹⁶⁹ This would seem to be supported by Patrick McGilligan’s comments to the then Prince of Wales, later EdwardVIII, at the 1930 Conference: “We don’t object to the Monarch or the Monarchy, but we do object to the British Parliament using the Monarchy. The King advised solely by our Ministers is what we want, and we will then be strongly monarchic.”¹⁷⁰ This was the problem for Cumann na nGaedheal. They had successfully transformed the Commonwealth, but in the process they had become—in the public mind as well as their own—identified as the party of the Crown. It was an image Jack Costello became determined to change.