Chapter 6  

NO HOPE WHATEVER

“I know enough constitutional law to know how little constitutional law I know.”¹

JOHN A. COSTELLO, 1936

“We had men there who had apparently no future … we had no chance of getting on and no hope whatever.”²

JOHN A. COSTELLO, 1969

John A. Costello was one of the leading contributors to the debate on de Valera’s new Constitution in 1937; he could also claim an indirect role in inspiring that document in the first place. As we saw in the previous chapter, he was severely critical of the proposed abolition of the Seanad in 1934, largely on the basis that it would allow a majority in the Dáil to change the Constitution without any other check. In response, de Valera agreed to examine the Constitution to identify “fundamental Articles dealing with the democratic foundations of the State. I do not mind if these are fixed so that they cannot be changed … without some such provision as a Referendum.”³ The result was the establishment of a constitution committee⁴—which eventually led to the new Constitution.

The draft Constitution was published at the start of May 1937, and undated notes on Costello’s copy show some of the concerns he would raise in the debates: provisions relating to the Irish language (in the name of the State, and in a proposal that laws could be passed to make the use of either Irish or English exclusive for certain purposes); the powers of the Taoiseach (to fire ministers and to seek a dissolution of the Dáil after losing its support); the method of electing the Seanad; and, above all, the new office of President of Ireland (he noted that proposals to give this official extra powers through legislation were “autocratic”).⁵ All these matters would be extensively debated, but the issue with which he raised the biggest initial storm was surprising. Costello, the former opponent of female membership of the UCD Literary and Historical Society, now turned into a defender of women’s rights.

Article 3 of the Irish Free State Constitution had stated that citizenship would be enjoyed by every qualified person “without distinction of sex” while Article 14 said the vote would be available to everyone over 21 who complied with electoral laws “without distinction of sex”. It has been convincingly argued by constitutional lawyer Gerard Hogan that this “was not some sort of free-standing equality guarantee” but simply gave women the same citizenship rights as men. As proof, Hogan points out that much discriminatory legislation was passed while the Constitution was in force⁶—not least the Juries Act of 1927, passed by the Cosgrave Government of which Costello was Attorney General, which exempted women from jury service (although they could apply to serve).

However, the absence of the phrase “without discrimination of sex” in the draft was uneasily noticed by women’s organisations. And in an article in the Irish Independent on 6 May, five days after the draft was published, Costello seized on the omission. He claimed that it affected the status of women “if not expressly, certainly by implication”. Costello then pointed out that in other articles, the State was not to be prevented from having due regard to differences of capacity, physical and moral, and of social functions. He argued that this “allows a wide latitude” to introduce discrimination, adding that it “offers its Framer as a whole burnt offering to feminists and feminist associations”.⁷ This last phrase, recalling comments by Kevin O’Higgins at the 1926 Imperial Conference (see Chapter 4), caught de Valera’s attention, as he referred to it several times during the Dáil debates.

The President responded to Costello’s article in a speech in Ennis, saying he had deliberately left out the phrase “without distinction of sex”. It had been used in 1922 because women had only just got the vote, and therefore it was “a badge of previous inferiority”. There was no need to include the phrase in the new Constitution, because nobody was challenging their right to equal citizenship.⁸ Maybe not, but it was arguable that they could—and Costello made that argument enthusiastically.

De Valera told the Dáil that women had equality “right through this document. There is nothing in it to suggest that they cannot vote for and become members of the Dáil, that they cannot vote for and be Senators, or that they cannot vote for and become President.” He added that the mention of women in two Articles was “to give the protection which, I think, is necessary as part of our social programme”.⁹ He returned to this theme the following day. “My line of approach is not one of prejudice against women or women’s rights. There is no truth whatever in it.” Costello pointed out that Article 16 would enable a government to pass legislation to remove the vote from women. De Valera responded with the not very reassuring observation that the provision “applies to other people as well as women”. He said the provision was there to exclude certain classes of people—those of unsound mind, prisoners, and so on—but conceded, “you may strain that and say that the extraordinary thing could happen, and that half of the electorate was going to be disqualified”.¹⁰ But he eventually had to concede the point, and amended his draft to include the words “without distinction of sex” in relation to nationality and citizenship rights in Article 9.1.3.¹¹

Having won this battle, Costello then turned his attention to the other provisions relating specifically to women—Article 40 on Personal Rights, which gave the State the power to take account of “differences of capacity, physical and moral, and of social function” in its laws, and Article 41 on The Family, which spoke about women’s role in the home and said mothers should not be obliged by economic necessity to work outside it. He said the provisions “do not appear to have any really practical value in a constitutional instrument. They are headlines, if you like, statements of general principles, statements of high ideals, to put it at its highest.” He agreed that there was nothing in the Constitution to prevent women getting work equally with men—but, he said, there was nothing to prevent a law being passed which would do so. It was, he said, “an incitement or an invitation to a future Legislature” to pass such a law.¹² Costello supported the removal of the phrase “by her life within the home” on the basis that it could be seen as a slight on women working outside the home, and indeed on single women. The promise to ensure that mothers wouldn’t be forced by economic necessity to work outside the home was, he argued, unnecessary. The preceding article already committed the Government to support the family—and in any case the article didn’t cover any other reasons why mothers might be forced to work, such as a drunken or lazy husband.¹³

In his obituary of Costello in January 1976, Irish Times Political Correspondent Michael McInerney wrote of his liberal attitude on some social issues, adding, “it is of interest … that he was one of the very few who opposed the Constitutional ban on divorce in 1937”.¹⁴ Such opposition would indeed have been interesting, given Costello’s reputation for loyalty to the Church. But in fact the point he raised—which was accepted by de Valera—related to a foreign registry office wedding that was subsequently dissolved. The case he cited involved a Catholic Irish girl who “married a Scotchman of a different religion in a registry office. Of course, that marriage was not in accordance with the views of the Catholic Church, was invalid and no marriage at all … the marriage was never consummated, because the parties separated at the door of the registry office and never saw each other again. The girl came to Ireland and desired to marry. The case was submitted to me when I was Attorney General with a view to prosecution for bigamy. I need hardly say that I did not prosecute.”¹⁵

He argued that the draft ban on the remarriage of people whose marriages had been dissolved under the civil law of any other state would affect such people. “It is no marriage, according to the Catholic Church. It is not a marriage, according to the law, because it has been dissolved in England, and this Article prevents either of the parties getting married here.” De Valera promised to look into the matter, but warned that dealing with all possible exceptions might undermine the purpose of the clause, which was to ensure that a valid marriage would not be dissolved within the State.¹⁶ The final article banned remarriage of people who had a dissolution abroad but whose marriage was “a subsisting valid marriage” under Irish law¹⁷—a provision that would exclude the registry office wedding.

But most of the debate was devoted to the new office of President of Ireland. Fine Gael “suspected that office might be a vehicle for the establishment of a de Valera dictatorship, either by his becoming President and being voted considerable powers by a compliant government or by installing a ‘yes man’ as president”.¹⁸ The former concern was prompted by Article 13.10, which stated that further powers and functions could be conferred on the President by law—the provision beside which Costello had written “autocratic”.

Pointing out that the word “Taoiseach” had been translated on German radio as “Führer”, he claimed that the office of President was a “scheme … for dictatorial powers”, whether it was occupied by de Valera or anyone else. Costello particularly objected to election by popular suffrage, which he believed would make the President “the centre of political activity in the future”, either directing events himself, or through his “yes man”, the Taoiseach. He declared, “I tell the House there is not a greater tyranny than the tyranny which masquerades under the cloak of democracy” (to which MacEntee rather wittily responded, “What about the tyranny that masquerades under a blue shirt?”).¹⁹ De Valera later picked up on the comment himself, saying that anybody can say that anything is masquerading. “I could say, for instance, that the lawyers over there who have been talking about this were only masquerading as lawyers and were really politicians.”²⁰

De Valera was to make this suggestion more than once during the debates on the Constitution. He complained that Costello, along with the other lawyers on the Opposition benches, was playing politics rather than giving considered legal opinions. “If I were asking the Deputy’s opinion privately, I would listen to it with the greatest care. I am afraid, however, that when he speaks from the benches opposite, he goes half the way with his argument as a lawyer, and then you can see the turn around.”²¹ At another stage of the debate, de Valera said that at one time he was “innocent enough” to think that Costello spoke in the Dáil strictly as a lawyer, but that “he has not his wig on here, and therefore I expect that he feels at liberty to make a case that he would not dare to make elsewhere”.²²

Costello also made an issue of the separation of powers, claiming to see danger to the independence of the judiciary in Article 37, which allowed non-judges to exercise “limited functions and powers of a judicial nature” in non-criminal matters. This, he claimed, would make civil servants judges and establish “bureaucracy in excelsis”. He also linked the provision with the powers of the presidency, saying it could be used to pass a motion “providing that the President can decide anything he likes except matters of criminal law. He may issue letters of cachet lodging persons in jail without trial and there is nothing in this Constitution to prevent him … This Draft Constitution allows the President to raise taxes on the people, on any and every article, without consideration by the Dáil.”²³

However, he appeared to be more fundamentally concerned about the reduction in the jurisdiction of the courts than about possible presidential transgressions. He proposed an amendment which would restrict non-judges to exercising judicial functions in “the exercise of administrative functions”. DeValera promised to have the matter examined.²⁴ The Revenue Commissioners noted that Costello’s proposed amendment would affect a large number of tribunals and commissioners exercising judicial functions not related to administration. In a memorandum sent to de Valera, they claimed that transferring these functions to the courts “would be disastrous from the point of view of the public as well as the State. The legal profession would be the only section of the community which would have reason to welcome such a change.” The Commissioners speculated that Costello’s real aim was the abolition of the Special Commissioners of Income Tax, which had been hearing appeals against tax assessments since 1853. “He has consistently shown hostility to this body … The transfer of their functions to the Courts would mean a very considerable increase in expense to taxpayers, and, owing to the delays and confusion caused, would probably bring about a state of something approaching chaos in the administration of the Income Tax …” The Minister for Finance, Seán MacEntee, suggested to de Valera that when dealing with the issue in the Dáil he should avoid mentioning the legal doubts which existed over the prevailing practice in Government departments, and that if the Opposition raised it, he should point out that nobody had felt confident enough to test the matter in the Courts.²⁵

De Valera gave no ground on this issue, or on the presidency. Costello pointed out that the requirement to consult the Council of State was no check on the President’s powers, claiming that he had devised the phrase “after consultation with” along with Kevin O’Higgins during the drafting of the Court Officers’ Act 1926 “for the purpose of meaning nothing”. He returned to the problem he saw with direct election, complaining that the President “can claim the same authority for his actions, legal or illegal, as the Government of the day can for their actions. The source of both their authorities is the vote of the people.” This, he believed, could lead to conflict between government and president, who could “resort to highfalutin’ talk about his being the guardian of the Constitutional rights and liberties of the people … and the direct appointee of the plain people”.²⁶ One of the amendments proposed by Costello would restrict the President to a single seven-year term on the basis that if he were eligible for re-election, he might direct all his public actions towards that end. In any case, he believed, seven years was too long a term.²⁷

He also wanted to remove the right of an outgoing president to nominate himself, saying he could not see the reason for treating him differently from other candidates. And, despite his suspicion of the new office, he opposed the provision for impeachment, saying it was a holdover from ancient British practice, and that if anyone was ever impeached, “all that will happen is that there will be an awful lot of talk either in the Seanad or in the Dáil, and in the end nothing will happen”. However, he expressed the hope that “Providence and my constituents may spare me to witness this extraordinary trial by impeachment of some unfortunate President, as I think it will be a matter of considerable amusement.”²⁸

Costello strenuously objected to what he saw as curtailments of civil rights in the new Constitution. He claimed that the phrase “subject to public order and morality”, which qualified the guarantee of certain rights, was “a grave menace” to freedom, because it gave the Government considerable latitude to define threats to order or morals. He made two suggestions to limit emergency powers, claiming that he would recommend them to any government he was advising—firstly, to allow the courts to certify whether or not there was a state of emergency, and secondly to provide for an appeal from special courts to the Court of Criminal Appeal. He said these safeguards would “go far towards calming the very reasonable fears that special courts would be used for subverting the liberties of the subject”. The irony of such suggestions from a former Attorney General who had helped bring in emergency powers was not lost on de Valera. He pointed out that if Costello were still Attorney General, he would “be the first to enter a caveat” to personal rights in order to see peace and order preserved—an accusation that was not denied.²⁹

In his initial notes on the draft Constitution, Costello described as “a patent absurdity” the provision that the Irish text would prevail if there was a conflict between it and the English version. He wrote that the Irish text was obviously a translation of the English, and that “the draft was conceived in English, will be debated in English, and, at least for many years must be construed by Judges not learned in the intricate idioms of the Irish language”.³⁰ During the Dáil debate, Costello successfully objected to de Valera’s original intention to have the state called “Éire” in both Irish and English texts. He objected to the practice of mixing the two languages in one document (citing the practice of starting a letter “A chara” and finishing it “Mise, le meas”, with the rest written in English). But he said his real reason for putting down the amendment to change the name to Ireland was to do with the State’s international status. “In so far as we are known abroad as a nation internationally, we are known by the use of the word ‘Ireland’. If you put in the word ‘Éire’, then foreigners may think that there is some distinction between the State that we have here and what has been known for centuries as Ireland.” De Valera rather reluctantly accepted the argument, and the amendment.³¹

Costello took exception to the provisions surrounding the Government too. He strongly supported the idea of collective responsibility (an idea that would be severely tested in his own first government), saying a minister must abide by the majority decision in Cabinet “irrespective of his own particular views before the decision was come to”. He objected to the provision that the Taoiseach could demand a Minister’s resignation, saying this meant they “hold office at the will and pleasure of the Prime Minister”.³² He believed this would make the Taoiseach too powerful. In Costello’s view, the holder of that office might be first among equals, but he should not dictate to the other members of the Cabinet. It was a view he would put into practice when he himself became Taoiseach 11 years later.

Ironically, given their later positions on the abolition of proportional representation, Costello urged de Valera not to specify in the Constitution the form of PR to be used. He said it should be left open, as it had been in the Free State constitution, rather than opting to “pin our faith” to the single transferable vote. STV would eventually lead, he argued, to a large number of small parties, leading to “instability in government”. But de Valera warned that a simple commitment to PR could be abused by finding an electoral system which was ostensibly proportional but which was very far from being so in practice.³³

Costello also made an effort to put protection for transferred civil servants into the Constitution, arguing that such a provision would prevent any future legislature repealing the 1929 Civil Service (Transferred Officers) Compensation Act, which he had drawn up as a solution to the Wigg-Cochrane case. He argued that he was not seeking a privileged position for these officers, but merely a position of safety. He pointed out that if the transferred officers hadn’t had a guarantee in the Free State Constitution, the Wigg-Cochrane case would not have been won. His proposal was strongly supported by Bill Norton, but de Valera was not disposed to give way. He pointed out that Costello had a special interest in the issue, and it would be unfair if other groups of people did not have their rights enshrined in the Constitution because they didn’t have a similar advocate in the Dáil. De Valera acknowledged that he might be hard to convince. Costello said it wasn’t hard to convince him—it was impossible.³⁴

In fact, he had secured some concessions—copper-fastening the rights of women and securing Ireland as the official name of the state, as well as certain minor changes to other articles. In the main, though, de Valera proved obdurate on matters of substance. However, Costello looked on the bright side, saying there were advantages to the Government ignoring the advice of the lawyers on the other side of the House. “If this Constitution is persisted in, as it stands at the moment, we who expect to be making our living for some years at the Irish Bar can look forward to making a rich harvest …”³⁵

But before he could concentrate on reaping his expected rich harvest, he had to face a general election. He fought the 1937 general election in a new constituency, Dublin Townships—effectively the constituency later called Dublin South-East. It was a three-seater, and in 1937 Seán MacEntee topped the poll, being elected on the first count with 27.4 per cent of the vote. Fine Gael won just over 45 per cent of the vote, which was perfectly split between Costello and his running mate, Ernest Benson, ensuring that both were elected—Costello was ahead by just 105 votes.

Dublin South-East produced many prominent politicians over the years—apart from Costello and MacEntee, they included Noël Browne, Garret FitzGerald, Ruairí Quinn, Michael McDowell and John Gormley. Quinn reported the comment of one woman talking to a Labour Party activist: “Oh, we don’t elect TDS here, we elect Ministers.”³⁶ The constituency had—and has—the image of being very well-heeled. There was much talk during Garret FitzGerald’s time as Taoiseach of the “Dublin 4 set”, for instance. But it also had—and has—areas of significant social deprivation. In 1939, Costello told the Dáil that he spoke “as the representative of a … constituency with poor people, with people on the border-line of poverty, with people on the borderline of comfort, and with very few rich people”.³⁷ Costello spent a good deal of time dealing with constituents seeking housing, which he described as “one of the most disheartening and heart-breaking tasks” he faced.³⁸ On another occasion, he observed, “I hear stories that would wring the heart of a stone—and I can do nothing.”³⁹ This was to continue even while he was Taoiseach.

The first contest in Dublin Townships in 1937 was marked by controversy involving Seán MacEntee—not for the last time. According to figures supplied to the returning officer, he and his running mate, Bernard Butler, spent £1,210 on their campaign, compared to the £106 reported by Costello and Benson.⁴⁰ After being challenged about these figures by Gerry Boland, the Minister for Lands and Honorary Secretary of Fianna Fáil, MacEntee defensively replied that around £500 was spent on newspaper advertising, “mainly to make good the weakness of the Headquarters effort in that regard”. He claimed that this expenditure helped the party in areas outside the constituency. Another £34 was spent delivering copies of the election bulletin to 13,000 houses, and of the Constitution to 3,500 houses. £100 was spent on letters to constituents, £73 on a constituency headquarters and a number of committee rooms, £22 on loudspeakers, £46 on bands, £91 on printing, £50 on “signs, streamers, flags, etc.”. It was an astonishing amount of money in the context of the times, covered by a direct personal appeal for support which raised £1,115 and £100 from Fianna Fáil headquarters. But MacEntee argued it was justifiable due to the nature of the constituency, which was “an overwhelmingly middle-class, residential district, the residents of which do not come to public meetings”.⁴¹

Perhaps MacEntee did need to spend this amount to get his message across, but he got a poor return for the investment. Not only did Fianna Fáil win only one of the three seats on offer, Dublin Townships also returned the highest No vote in the country in the Referendum on the Constitution. 59 per cent of valid votes in the constituency were cast against the Constitution. The only other constituencies to vote No were Cork West (55.5 per cent against), Wicklow (51.7 per cent) and Dublin County (51.7 per cent).⁴²However, nationally, the Constitution was accepted by 56.5 per cent of voters, on a very high turnout of almost 76 per cent.

The general election left de Valera in a minority, but he managed to return to government. The new Dáil had to deal with a number of matters arising from the Constitution, including arrangements for electing the new Seanad. Costello was scathing about the proposals, pointing out that there was no basis on which to establish a functional or vocational upper house. There was no equivalent of the corporative system in Italy, nor was one likely to develop. “There is no use trying to set up machinery for something which has no proper foundation.” He rightly observed that no matter how good a candidate was, he would not be elected without party political support.⁴³ How, he asked, was a Seanad with “specialised knowledge, independence of thought and action” to emerge when the electorate was made up of politicians, including councillors? He also warned of the danger of political corruption, of councillors “being subject to corrupt pressure, of being asked to vote for a particular person for a monetary consideration, because that is going to happen, and we had better face it”.⁴⁴ This was a prescient observation—ironically, in 1945 Costello would himself be on the legal team of John Corr, who was convicted of bribing councillors to influence their Seanad votes.⁴⁵

In a speech to a Fine Gael meeting in Dublin in December 1937, Costello claimed that the “so-called economic war has steadily poisoned the life stream of our body politic”, and that “there can be no relief until that absurd conflict is put an end to”. That much may have been true—but he also predicted that the Government, “under their present leadership at all events” would not have the courage to make an honourable and advantageous peace.⁴⁶ In fact, that was exactly what de Valera was working on, and in April 1938 he reached agreement on ending the economic war, as well as securing the return of the Treaty ports. It was a diplomatic triumph which he rightly recognised would be extremely popular with the electorate, if he could only find an excuse for appealing to them again. Luckily for him, just such an excuse was to be supplied by John A. Costello.

In March, Costello moved a private members’ motion in the Dáil calling on the Government to establish arbitration for disputes on pay and conditions in the Civil Service. As he admitted when moving the motion, the subject had been before the House on several occasions already, and the arguments were predictable. He pointed out that arbitration machinery was already working well in Britain, and so “we are not taking any leap in the dark” with the proposals.⁴⁷ The Government claimed that binding arbitration would impinge on the Government’s control of the public finances. When the debate finally wound up with a vote in May, Costello said it was clear that any scheme of arbitration would be “subject to the paramount right of control in the Dáil”.⁴⁸ Then, to everyone’s surprise, the Government was defeated in the vote, by 52 to 51. The result was greeted with cheers from Opposition TDS, who suggested it was time for the Government to resign. The Taoiseach was not present, having gone to Limerick for the funeral of his uncle, Patrick Coll.⁴⁹

The Government spent two days considering its options after the first Dáil defeat under the new Constitution. These were broadly four—accept the vote and introduce arbitration; ignore the decision of the Dáil altogether; put down a motion of confidence to clarify if it still commanded a majority in the Dáil; or call an election. Given the favourable political situation, the last option was an attractive one to de Valera, so while his decision appeared to surprise observers, it shouldn’t have. The decision to call an election was made at a Cabinet meeting on the morning of 27 May, and announced late that night. The Taoiseach said a Government with a precarious parliamentary majority “cannot do the nation’s work as it should be done”, and that it had to be able “to refuse sectional demands which it considers not to be in the general interest”.⁵⁰

MacEntee attacked his constituency rival with relish, telling voters that the election had been precipitated by Costello, claiming the issue was not arbitration, but the demand that “it should be applied without any safeguard for the taxpayer”.⁵¹ In fact, Costello’s motion had specified that the Government’s acceptance of any arbitration awards would be “subject to the overriding authority of the Oireachtas”⁵², but that mattered little in the context of a heated election campaign. He later complained that his rival had gone round the constituency “raising the hair on the heads of the taxpayers about the amount of money and taxes” arbitration would cost.⁵³ MacEntee increased his share of the vote to just under 31 per cent, while the Fine Gael share also rose—but Benson benefited more than Costello, and was elected on the first count along with MacEntee. Though well ahead of the second Fianna Fáil candidate and elected comfortably, Costello was almost one thousand votes behind his running mate. He later claimed that the fall in his vote was due to attacks on his position on arbitration. “Every effort was made to deprive me of my seat … because of the stand I took on behalf of civil servants.”⁵⁴ But the figures were an indication that despite his high profile in the Dáil, he could take nothing for granted if there was slippage in the Fine Gael vote.

Costello continued to mix politics and the law, notably in arguing cases before the Civil Service Compensation Board, the body set up under the 1929 Act to hear compensation claims from transferred civil servants. The most significant case was that of Peter Hegarty of the Department of Local Government. In a decision delivered in August 1938, the tribunal agreed that, as a transferred civil servant, he was entitled to compensation because his position had been changed by the new Constitution—in effect, it held that he had been discharged from the service of the Free State because the Constitution had come into force.⁵⁵ As Costello noted with some glee, he had been in the position of arguing that “a great change had taken place by virtue of the Constitution, and the Minister’s advisers were forced to make the case … that really no change had taken place at all … the Minister will forgive me if I got a certain amount of amusement out of the Hegarty case …”⁵⁶

With an estimated nine thousand civil servants who had transferred from the British to the Free State still working for the Government, the possibility of many more such claims was clearly a live one.⁵⁷ Legislation was introduced in October to clarify that anyone deemed to have been discharged from the Free State civil service on the coming into force of the new Constitution was deemed to have been immediately reemployed, on the same terms and conditions, in the service of the Government of Ireland.⁵⁸ Costello argued during the debate on the Bill that only around 40 civil servants had lodged claims based on the Hegarty decision, and that the Government was not faced with a “very serious financial embarrassment”.⁵⁹ The Government wisely ignored this point of view and closed the loophole.

Another case involved a client who sued for libel after being referred to as a “hangman judge”. Costello met one of the character witnesses, civil servant Leon Ó Broin, on the way into court, and asked him if he remembered Hempenstall, “a figure from the ’98 period who had the ugly reputation of being judge, jury, hangman and all. I did, and when I was in the witness box Costello exploited that piece of Irish history to secure judgment and £3,000 for his client.”⁶⁰

Far more serious matters were on the horizon, though. In July 1938, with the Sudeten crisis brewing on the Continent, the Dáil discussed the Army Estimate. Costello made the point that Ireland would be attacked if it suited some big nation to do so—no matter what constitutional provisions or type of sovereignty she had. He also, equally realistically, pointed out that Ireland did not have the resources to pay for an adequate defence against these big nations. However, thanks to geography, it was in British interests to defend Ireland. He correctly foresaw that Ireland would supply food to a Britain at war, but wrongly believed this would make neutrality impossible as Irish ships and harbours would be attacked. The logic of his argument was that “we are going to be attacked if it suits another country to attack us … we cannot afford to equip ourselves for modern warfare, and that therefore we shall have to depend on some nation which has a common defence policy with us to assist us”. Specifically, he suggested Ireland should co-operate with “the other nations of the Commonwealth”. Defence Minister Frank Aiken dismissed the suggestion of a defence agreement with Britain while Partition lasted.⁶¹

It may seem odd that at this late stage Costello still regarded Ireland as a member of the Commonwealth—but such she still was, despite de Valera’s refusal to have anything at all to do with the machinery of the Commonwealth. Even the decision to remain neutral in the Second World War did not imply a final break with Dominion status, according to the distinguished scholar Nicholas Mansergh. He pointed out that South Africa only decided by a narrow vote in Parliament to enter the war, making abundantly clear that “the decision between peace and war rested with each dominion Parliament. If Éire be regarded as a dominion, there was no difference in principle between a South African Parliament deciding by a small majority against neutrality and the Dáil deciding virtually unanimously in favour of it.”⁶²

Neutrality, however, was not the policy of the IRA, which launched a bombing campaign against Britain early in 1939. De Valera’s response was to introduce two pieces of legislation—a Treason Bill, which prescribed the death penalty; and the Offences Against the State Bill, which provided for the reintroduction of the military tribunal and internment without trial. All these powers were to be extensively used during the Second World War. Fine Gael reluctantly offered to support the legislation, subject to certain safeguards. Costello acknowledged that the Offences Against the State Bill was “practically verbatim copied” from legislation introduced between 1922 and 1932, especially Article 2A. But he wanted some sections removed from the Bill.⁶³ He objected to provisions putting the onus of proof on those accused of having illegal documents in their possession, and giving the State power to suppress an organisation—he claimed this was too drastic a provision to be included in ordinary law, and cited his own party’s experience of having an organisation banned. He also insisted that there should be a right of appeal from the special tribunal to the Court of Criminal Appeal—saying that “if, God forbid, I had anything to do with anything like Article 2A again, I would certainly wish to have, from the point of view of any person prosecuting or defending before a special tribunal” such a right of appeal.⁶⁴ His amendment was accepted, and the right of appeal from the tribunal established in law.

On Saturday 2 September 1939, the day after the German invasion of Poland and the day before Britain and France declared war, the Oireachtas was recalled to pass two measures. The first was a constitutional amendment to give the Oireachtas power to declare that a state of emergency existed (to avoid the possibility that the courts would hold that emergency powers could only be used when the State was actually involved in a conflict). The second was a comprehensive Emergency Powers Bill. It was so comprehensive, in fact, that Costello claimed it caused him “profound shock”. However, given the circumstances, Fine Gael was prepared to give the Government the powers it sought—on certain conditions. In particular, Costello was worried about the powers of delegation in the Bill, which would allow the Government to confer powers on various people without further consultation with the Oireachtas. “To me, with my legal experience and legal instincts, they are very objectionable indeed.” He argued that the powers of censorship should be “exercised with the utmost tact and with the greatest possible leniency towards newspapers”; that the power of control over persons entering or leaving the State, or of moving freely about the State, should not apply to Irish citizens; and that the Government should use Orders under the legislation “as sparingly as possible and to allow no element of bureaucracy to enter into the administration of the measure”⁶⁵—a theme he was to return to repeatedly during the war years.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The 1946 debate on the estimates for External Affairs provided an opportunity for the Opposition to explore Ireland’s relationship with the Commonwealth. Dillon said he wanted Ireland to be a member, but in any case she should make up her mind as to whether she was a Commonwealth member or a Republic. “Is there not something contemptible and rotten about pretending to be one thing when we are, in fact, something else?” Costello said “nobody but the Taoiseach knows what the present position is”. He believed useful results could be achieved from the Commonwealth association, “which I gather that the Taoiseach in some obscure way still says exists”. He argued that “our head of State, in so far as there is a head of this State, resides in Buckingham Palace”, because an international treaty between Ireland and the USA would be signed by the American President and the King of England. But he said he had no interest in the form of government, whether Ireland was a Commonwealth state, a kingdom or a republic—what concerned him was the State’s international standing. “The form of government makes no difference, provided we have freedom, that we are an independent State, and a fully fledged member of the family of nations. I do not care whether the head of State resides in Buckingham Palace or Phoenix Park, provided we are a sovereign State and that we are nationally and internationally free.”¹⁴⁵ The logic of that argument was irresistible—the only way to achieve clarity about the State’s international status was to declare the connection with the Commonwealth, already dead in practice, to be dead in law as well. Patrick McGilligan made a similar point in the following year’s External Affairs debate: “If I have to make a choice between living a lie and some trouble arising in our international relations, I would rather have the trouble in international relations …”¹⁴⁶ He, and Costello, would soon have that trouble in spades.

However, Costello in opposition displayed about as much consistency on this issue as he would display in government. Just a month after arguing the importance of clarity of status, he stressed during a debate on potential Irish membership of the UN that Ireland still belonged to the Commonwealth, “however tenuous at the moment that association may be”. He spoke of the advantages of an association which “Fianna Fáil and all other parties” recognised existed and would continue to exist. Costello would adopt a different position as Taoiseach. He would also reverse his views on neutrality, which dominated his speech on the UN. “Whether or not we were neutral in the last war, there can never be any question again of this country being neutral in any future war.” He believed United Nations membership would impose obligations making neutrality impossible, and appealed to all Deputies to admit this “and to see that there is no flapdoodle and tosh-talk throughout the country about our neutrality”. He said he supported the Irish application to the UN because “we must either join some combination of big nations which will protect us against aggression in future wars, or else leave ourselves open to become the plaything or the pawn of any big nation, or group of nations, in future world conflicts”.¹⁴⁷ By the time he became Taoiseach, the logic of that argument would imply membership of NATO, but he managed to ignore that logic.

A long-running legal case with political ramifications concerned what were known as the Sinn Féin Funds—a sum of money vested in the High Court in 1924 by the two joint treasurers of the party (both pro-Treaty) in an effort to stop de Valera getting his hands on it. By the late 1940s, the money had accumulated to around £24,000—or about half a million euro in today’s values.¹⁴⁸ In April 1947, de Valera brought in the Sinn Féin Funds Bill, to preempt the decision of the courts. Costello strenuously argued against the attempt to usurp the authority of the courts. He acknowledged that his first official act as Attorney General in 1926 had been to bring in a Land Bill dealing with the Lynam v. Butler case. But he made the point that the aim of that legislation had not been to overturn a decision of the Irish courts, but to prevent that decision being appealed to an outside body (the Privy Council). The decisions of the courts must, he said, “be regarded as sacred”. Costello also objected to de Valera’s claim that there was a difference between equity and law, claiming it was a “very dangerous doctrine for the head of Government to declare”.¹⁴⁹

Costello was to appear for Sinn Féin President Margaret Buckley, along with Seán MacBride and Charles Casey. When the case came to court in February 1948, Casey plaintively complained that his co-counsel were now Taoiseach and Minister for External Affairs respectively. Another barrister in the case, Cecil Lavery, was now Attorney General. The case was deferred to allow for new counsel to be briefed.¹⁵⁰ Inside government, Lavery argued that the State’s case should be changed—it had originally objected to giving the funds to an organisation pledged to use unlawful means to achieve its aims. But Lavery asked whether this would include “residents of the 26 Counties organising a riotous assembly in … Belfast in pursuance of the object of destroying British authority in the Six Counties”. The Government decided that this aspect of the case should not be relied on, and that the Government should simply argue that it wanted a decision on who owned the money.¹⁵¹ Despite this change of tack, the judgement went against Sinn Féin—while the High Court accepted that the party in 1948 was the same as that of 1923, it was not the legal successor of the party of 1917–22, largely because when de Valera moved to resurrect Sinn Féin in 1923, he had ignored its existing officers and standing committee, thereby breaking the continuity of the movement.¹⁵² Not that it mattered greatly—by the time legal costs were paid, just £1,700 was left out of the original £24,000.¹⁵³

That was in the future, though—in 1945, Fine Gael looked to be a long way from power. Liam Cosgrave, by far the most able and active of the party’s newer TDS, criticised irregular Dáil attendance at the start of that year. According to figures compiled by the Chief Whip, P.S. Doyle, Mulcahy managed to attend on 22 of the 25 sitting days between June and December 1944 while Cosgrave was present on 19. Costello managed just 12—although this was considerably better than MacEoin and McGilligan (eight each) and Dan Morrissey (just four).¹⁵⁴ It was agreed to add a note of Dáil attendance to the parliamentary party minutes, and to circulate the figures for January and February to Deputies’ home addresses. Costello managed to attend on eight of the 15 sitting days in the first two months of the year, but voted in only three of the 13 divisions.¹⁵⁵

The party was not, then, in particularly good shape as it faced a number of by-elections, as well as a presidential election. Mulcahy canvassed the other Opposition parties to see if an agreed presidential candidate could be found. He suggested Alfred O’Rahilly, a suggestion received with lukewarm enthusiasm by Joe Blowick of Clann na Talmhan and outright rejection by Labour. Some in the parliamentary party felt they should not contest the election at all, but deputy leader T.F. O’Higgins said failure to do so would leave Fianna Fáil “rampant”. “It was essential to keep the Party in existence and … no matter what chances the Party might have either in the Presidential or by-elections, they could not act otherwise than throw down the gauntlet every time”. Seán MacEoin, the chosen candidate, compared his situation to his experiences in the War of Independence. “The shortage of ammunition was a great worry then … it was even worse now, but the sacrifice demanded was not so great.”¹⁵⁶

In the event, MacEoin won 31 per cent of the vote. Seán T. O’Kelly of Fianna Fáil was just under a quota with 49.5 per cent. The Independent Republican candidate, Patrick McCartan, later a major figure in Clann na Poblachta, won 19.5 per cent. McCartan had been supported by Labour, Clann na Talmhan and some Independents. Significantly, his transfers favoured MacEoin over O’Kelly—more than 55 per cent went to the Fine Gael man, 13 per cent to O’Kelly, and 32 per cent were non-transferable.¹⁵⁷ Clearly there was potential for co-operation among the Opposition parties.

Costello later recalled the long years of Opposition as a period of “hard, arid, arduous work under conditions of no hope”.¹⁵⁸ The understandably low morale within the party was demonstrated by the continuing poor attendance in the Dáil. A more serious portent was a letter from Liam Cosgrave to Mulcahy in May 1947. “A party working under such conditions cannot have confidence in itself, let alone expect public confidence … While I do not wish to embarrass yourself or the party, in view of the pending Tipperary by-election, I must say that I cannot any longer conscientiously ask the public to support the party as a party, and in the circumstances I do not propose to speak at meetings outside my constituency.”¹⁵⁹ Coming from one of the few rising stars in Fine Gael, this was an extraordinary vote of no confidence in the party.

If there were good reasons for believing that Fine Gael’s future was bleak, there were also indications that the Government was more unpopular than ever—particularly the formation and initial success of Clann na Poblachta, the new radical Republican party led by the exotic Seán MacBride. The new party won two of the three by-elections in October 1947, leading de Valera to call a general election for the following February. The Fianna Fáil government also faced an embarrassing political controversy over the sale of Locke’s Distillery to some foreign gentlemen who turned out to be crooks. The issue was raised by Opposition TDS, particularly the colourful Independent Oliver J. Flanagan, and a tribunal established. Costello’s contributions on the scandal concentrated on the constitutional point that Deputies had legal privilege for what they said in the Dáil. In an echo of points made in relation to the Wicklow Gold mining inquiry, Lemass had said deputies would have to give evidence of allegations they had made. Costello said such a move would infringe the Constitution, and that any Deputy would have to resist such a request. “Once a Deputy is obliged to give to any court other than this Dáil … his source of information, the independence of every Deputy and in particular of Opposition Deputies, is gone for ever and democracy is uprooted in this country.”¹⁶⁰

An election loomed; and Fine Gael’s only chance of escaping from the Opposition benches lay in reaching agreement with the other Opposition parties. O’Higgins and Dillon had both been involved in attempts to form an alliance between Fine Gael, Clann na Talmhan and some of the Independents.¹⁶¹ These came to nothing, but there were other indicators that an alliance might be possible. Given Fianna Fáil’s implacable opposition to coalition, all other parties knew their only hope of office was through combination. Transfer patterns in the presidential and by-elections indicated that voters understood this logic. And in the Dáil, a long period in opposition inevitably led to greater co-operation among the parties. As Costello pointed out in April 1947, it was becoming increasingly obvious in the House that “every single Party, and Independent Deputy, are lining up against the Government, whatever the differences between themselves may be …”¹⁶²

During the 1948 election campaign, he criticised Fianna Fáil’s record, claiming that “if the Irish people prove themselves incapable of choosing a substitute, democracy here cannot survive … If given a dominating influence in the new Dáil, Fine Gael would co-operate with any constitutional Party which would tackle the vital problems of poverty, disease, the cost of living and production.”¹⁶³ The Fianna Fáil organisation in Dublin South-East put out a leaflet pointing to his admission that such a government would have to refrain for some years from dealing with issues about which “acute party differences exist”.¹⁶⁴ Fine Gael’s new-found enthusiasm for coalition was a result in part of hard-headed calculation about their level of support, in part of understandable frustration at their inability to unseat Fianna Fáil. It was about to produce very surprising results—not least for John A. Costello.