Chapter 5

THE BLUESHIRTS WILL BE VICTORIOUS

“… the Blackshirts were victorious in Italy and … the Hitler Shirts were victorious in Germany, as … the Blueshirts will be victorious in the Irish Free State.” 1

JOHN A. COSTELLO, 1934

“It is ridiculous to talk about Cosgrave being a Fascist or James Dillon or myself or Tom O’Higgins or any of these people—it is absurd.” 2

JOHN A. COSTELLO, 1969

On 28 February 1934 John A. Costello made his most famous speech in the Dáil—which was unfortunate, as it was probably also his most ill-advised. He was responding to Fianna Fáil Justice Minister P.J. Ruttledge in a debate on the banning of uniforms. The ban was aimed squarely at the Blueshirts, a quasi-Fascist movement which formed part of the new Fine Gael party. Ruttledge defended his legislation by outlining similar measures in other countries, to which Costello replied, “The Minister gave extracts from various laws on the Continent, but he carefully refrained from drawing attention to the fact that the Blackshirts were victorious in Italy and that the Hitler Shirts were victorious in Germany, as assuredly, in spite of this Bill and in spite of the Public Safety Act, the Blueshirts will be victorious in the Irish Free State.” 3

It was deeply ironic that Costello, as wedded to democracy and the rule of law as any leading Irish politician, should come to make a speech comparing members of his own political party to Mussolini’s Fascists and Hitler’s storm-troopers. As he ruefully acknowledged 35 years later, the phrase went around his constituency at every subsequent election. But he claimed that it never affected him, because “my own constituents and everyone in Ireland knew that it was only a phrase”. He insisted he only meant that the Blueshirts would ensure free speech, adding that “at that time Mussolini and Hitler had not reached the bad situation that they subsequently reached, and which brought them the odium of the world”. 4

It was true that the worst excesses of Nazism and Fascism were in the future. However, while the plight of German Jews may not have received a huge amount of coverage in the Irish media at the time, the treatment of the Catholic Church by the Nazis did. On the very day Costello drew his comparison between the Blueshirts and Hitler’s Brownshirts, the Irish Independent reported Nazi attacks on the Cardinal of Munich, “whose sermons against paganism and in defence of the Old Testament have made him a target of attacks by Herr Rosenberg and other prominent Nazis. Stones were hurled though Cardinal Faulhaber’s windows a few weeks ago.” 5 Genocide may not have been apparent in 1934, but thuggery most certainly was.

As far as Jack Costello was concerned, it was “only a phrase”. He did not wear a blue shirt himself, was not a fascist ideologue like some former Cabinet ministers, and did not subscribe to extreme views about anything. It was, as he put it, “absurd” to talk of him or Cosgrave or Dillon or Tom O’Higgins being fascists; 6 but his speech gave the Government the opportunity to do just that, as was shown during the Dáil debate.

The controversial passage was part of a very long speech, covering more than 12 columns of the official record, most of which was devoted to a defence of civil rights, and a claim that the Bill was a menace to democracy because it was aimed by the Government at the main Opposition party, which had been acting within the law. “It is going to set a precedent for anybody who wishes to stifle for all time … the right of freedom of speech and the right of free association … The actions of the Government have brought the law, as administered by the present Government, into disrepute.” 7

But Government speakers pounced on the comparison between the Blueshirts and the Nazis. Conor Maguire, Costello’s former associate in the L&H, now his successor as Attorney General and bitter political opponent, described it as the “fatal slip” of the speech. “Here we have it plain and clear that the Blueshirt organisation is here to be the spearhead of an attack upon democratic and Parliamentary institutions.” 8 Seán Lemass, the Minister for Industry and Commerce, said his speech “brings very forcibly before the Dáil another stage in the development of militarism in politics”. 9

Perhaps the main explanation, if not justification, for the speech was the belief on the Opposition benches that democracy was under threat from the Government, and in particular from its leader—a belief that would carry through to the debates on de Valera’s new Constitution three years later. The fact that events proved these fears groundless does not mean that they were not genuinely felt. To understand how and why the speech was made, it is necessary to consider why Fine Gael felt this way, and how John A. Costello found himself in the Dáil in the first place.

As we saw in Chapter 3, W.T. Cosgrave was opposed to political involvement on the part of the Attorney General. However, Costello played an active role in the 1932 election. In later years he claimed he was “seduced from the path of righteousness” 10 by Ernest Blythe, who asked him to speak in his Monaghan constituency. In fact, before he went to Monaghan, he had already spoken to at least one election meeting, for the Dublin County candidates, in Rathmines Town Hall. In this, his first reported political speech, he said the happiness and prosperity of the people depended on the election result; that the Cumann na nGaedheal candidates represented all classes and creeds; and that the removal of the Oath would be “the clearest breach of the Treaty”. 11

The following evening he spoke at an election meeting for Blythe in the Diamond in Monaghan Town. It was a colourful occasion. Blythe was met by “a torch-light procession … headed by Doohamlet warpipe band” as he entered the town, and the Cumann na nGaedheal speakers faced a rival Fianna Fáil rally a hundred yards away. 12 Judging by the account in the Irish Independent, Costello’s speech was a rather dry recitation of the legal arguments on the annuities question. 13 The following morning, the Attorney General tried to address an after-Mass crowd at Maheracloone Lower without much success. “When the congregation came out from Mass, they more or less lined up beside the ditch while Senator O’Rourke and I were maintaining a very precarious standing. And having lined up, a whistle was blown, and the entire congregation … walked away. And that was my first real entrance into practical politics …” 14 It could have been worse—Cumann na nGaedheal speakers at an after-Mass meeting at another Monaghan village, Latton, faced scuffles which had to be broken up by Gardaí with drawn batons. 15

It seems unlikely that the Attorney General’s intervention made much difference to the outcome, which saw Blythe hold his seat fairly comfortably (he was defeated in the following year’s snap election). But nationally, Cumann na nGaedheal didn’t fare so well, winning just 57 seats to Fianna Fáil’s 72, and losing office as de Valera was elected President of the Executive Council with the support of Labour. Cumann na nGaedheal’s defeat was probably inevitable thanks to the depression which followed the Wall Street Crash. But the party leadership, with the notable exception of Dick Mulcahy, certainly didn’t help matters by shunning the nuts and bolts of party organisation. W.T. Cosgrave told Garret FitzGerald in the 1960s that his Government had contained “a half-statesman, Kevin O’Higgins, but no politicians”. The former President said Desmond FitzGerald was “too busy arguing about theology with Father Cahill” to worry about party organisation, while Patrick McGilligan refused even to go to Cork for a meeting. 16 Fair criticism, no doubt—though the party leader was even more to blame than his ministers.

While Jack Costello was dipping his toe into political waters, his father had already plunged in. Following his retirement, and the death of his wife in July 1929, 17 John Costello ran for a seat on Dublin Corporation, being elected on three occasions for the North City (Number 3) electoral area. At the time of his first election in 1930 Cumann na nGaedheal did not contest local authority seats, as councils were regarded as non-party political. He ran instead under the banner of the “Greater Dublin Constitutional Group”, whose Chairman promised “to oppose all political discussion at Corporation meetings” in order “to secure the businesslike conduct of meetings, to enable the Corporation to concentrate on strictly Dublin affairs, and to avoid the introduction into local business of party bitterness and party wranglings, which has already done enough harm elsewhere”. 18

The new Councillor’s political tone was moderate and reasonable—arguing the case for negotiations to reach a settlement in the Economic War with Britain in a letter to the Irish Independent in August 1932: “One does not need to be a politician to realise the value of negotiation as a means of overcoming obstacles and arriving at a basis for agreement … Political parties might continue to express their opinions to very little purpose, unless the ordinary man in the street, who after all is the sufferer, stands up for his own rights and insists on immediate negotiations.” 19 He was also active on behalf of his constituents—his work was still remembered in Dublin North West in the 1950s, 20 to the advantage of his grandson Declan, a TD for the area.

By the time the 1933 local elections came round, it was decided that the Constitutional Group candidates should run under the Cumann na nGaedheal banner. Party secretary Liam Burke explained that the Constitutional Group was “unequipped with the necessary political machinery … to prevent … threatened personation” (i.e. vote stealing). Burke promised that after the election, the candidates would revert to their traditional view, and resist Fianna Fáil attempts to use the corporations as a vehicle for party politics. 21 John Costello lived up to this promise after retaining his seat and being elected Chairman of the Joint Committee of the Grangegorman Mental Hospital (which was at the end of the street on which he lived, Rathdown Road). At his first meeting as Chairman he sent a message to Fianna Fáil, then abstaining from the Corporation, expressing “the hope that at the next meeting they would have their absent colleagues”. 22 It was also on the Grangegorman Committee that he became friendly with fellow councillor Big Jim Larkin 23 , a relationship which built bridges for his son with the Labour Party.

By 1936, John Costello was standing on the Fine Gael, or United Ireland Party, ticket. He had the backing of the Lord Mayor, Alfie Byrne, who included him on a list of candidates he urged the public to support. The Lord Mayor warned voters, “The Municipal council is not the place for politics. We have had too much politics in this country … Bands will play; slanderers will get busy; personators … will be active, and strenuous efforts will be made to make the Municipal Council a replica of An Dáil—a political machine where minorities must bow to force of numbers.” 24 It was to be Councillor Costello’s last election—in October 1936, a day after chairing a meeting of the Grangegorman Mental Health Committee, he became ill and died at the age of 74.

To return to his son’s entry into politics: when Cosgrave and his colleagues lost office in 1932, they were firmly convinced that their exile on the Opposition benches would be a short one, because de Valera and Fianna Fáil would be unable to govern responsibly. Their worst fears appeared to be realised, as the new Government released all political prisoners, suspended Article 2A and lifted the ban on the IRA—although, in a “deliberately conciliatory gesture”, de Valera appointed former Cumann na nGaedheal TD James Geoghegan as Minister for Justice. 25 So, when a new election was called in January 1933, Cumann na nGaedheal were confident of victory, a confidence boosted by what Costello later described as “huge demonstrations in Dublin and elsewhere”. 26 A contemporary account, albeit in a pro-Cosgrave paper, described the former President addressing “one of the largest political meetings that Dublin has witnessed for a generation”, with 500 Gardaí and “several hundred members of the Army Comrades Association” foiling attempts to disrupt it. 27 It was in this election campaign—“arguably the most bitter, turbulent and colourful in the history of independent Ireland” 28 —that John A. Costello first stood as a candidate.

He had already been selected to contest a by-election caused by the death of his friend and colleague at the Bar, Tom Finlay. Finlay had been in turn a District Justice, assistant secretary in the Department of Justice, practising barrister, and, from December 1930,TD for Dublin County. He had then won the by-election caused by the death of Major Bryan Cooper with a massive 35,362 votes to 15,024 for Fianna Fáil’s Conor Maguire. 29 In the 1932 general election, Finlay was re-elected on the first count, but in November 1932, he died of paratyphoid. According to the Anglo-Celt, the local paper in his native Cavan, news of his death “came as a terrific shock, causing strong men to weep like children”. No doubt the sorrow was genuine, although the fact that Finlay was a nephew of the Anglo-Celt editor may have affected the tone of the coverage. 30

Costello had been friendly with Finlay, in Government and at the Bar, and their wives were also close—Mrs Finlay was godmother to one of the Costello children. 31 A selection convention chose John A. Costello to contest the expected by-election. Not everyone was delighted—the candidate later related the response of one north County Dublin senator to his selection: “he said with deep disgust: ‘Another lawyer!’”. Costello’s election theme, he later recalled, was that Cumann na nGaedheal was a national rather than a sectional party. 32 He also stressed that W.T. Cosgrave would achieve “peace on decent terms with Great Britain … Cumann na nGaedheal was going to win this election, but they wanted a large majority.” 33 The eight-seat Dublin County constituency stretched from Balbriggan to Bray, and out as far as Tallaght and Firhouse. The new candidate “fell into every ditch in north County Dublin in the dark when I was trying to find my way round”. 34 He evidently discovered a fair few votes in those ditches, being elected on the first count with 10,941 first preferences, 890 over the quota. He was in third place behind Seán MacEntee of Fianna Fáil and Cumann na nGaedheal’s Henry Dockrell. Cosgrave’s party managed to retain its four seats in the constituency, while Fianna Fáil won a seat from Labour. But nationally, Cumann na nGaedheal had a disastrous election, dropping 9 seats to just 48, while de Valera won his first overall majority with 77 seats.

In opposition after a second defeat, party discipline quickly fell apart. Mulcahy complained to Cosgrave that front bench meetings were “almost impossible. They start late—with bad attendance and decide little if anything at all.” 35 A parliamentary party meeting chaired by Costello in June had to be abandoned “owing to the small attendance”. 36 The former ministers who survived the election were faced with the need to pick up the threads of their careers and earn a living. Just as the First World War had given Costello a chance to break into the Bar, so the shattered state of the parliamentary party offered him an opening in Cumann na nGaedheal. He was quickly playing a significant role in the parliamentary party, chairing a committee on External Affairs, and also one on meetings, which was “to receive reports from each Deputy as to his intentions and to see that a scheme of meetings was carried out”. 37 He was also to make an immediate impact in the Dáil chamber, thanks in large part to Fianna Fáil’s decision to sack Garda Commissioner Eoin O’Duffy.

Emboldened by his overall majority, de Valera moved to stamp his authority on the justice area. The only change to his cabinet was the replacement of Justice Minister Geoghegan, formerly of Cumann na nGaedheal, with P.J. Ruttledge, “a republican hardliner whose IRA sympathies were well known”. 38 On 22 February, the Executive Council decided to remove O’Duffy as Garda Commissioner. He was offered an alternative job, first as head of a new branch of the Department of Industry and Commerce dealing with mineral development, and after he rejected this, as Controller of Prices. O’Duffy rejected this offer too. 39 The curt letter of dismissal cited Section 2 of the Garda Síochána Act, 1924 as the legislative basis for the sacking. 40 When de Valera was challenged by Cosgrave about the sacking on 1 March, he again mentioned Section 2 of the 1924 Act. The President said no charge had been made against the general; he was removed because the Executive Council felt a change of commissioner was in the public interest. 41 Had Cumann na nGaedheal stayed in power they would have sacked O’Duffy too; but things look different from the Opposition benches. Cosgrave told his parliamentary party that the dismissal “might well be indicative of a change of policy as well as a change in personnel”, 42 and he put down a Dáil motion condemning the Government’s action.

But as the debate began, John A. Costello lobbed a legal hand grenade into the Dáil chamber—his first contribution in the House. He pointed out that the section of the Garda legislation cited by the Taoiseach had been repealed, and that O’Duffy “is neither in fact nor in law removed”. The Ceann Comhairle said he wasn’t going to interpret legislation and the debate continued, but Costello kept de Valera under pressure. The President sniffily suggested that “the former Attorney-General … should have known better” than to raise doubts over the legality of the dismissal. Costello in turn accused de Valera of making “an unworthy attack” on him. 43 It was an impressive debut for the new TD, an indication that his forensic legal skills would be a valuable addition to the Opposition. The next time a Garda Commissioner was removed, in 1978, officials duly noted the legal slip, pointing out that the incident “lends support to the wisdom of our present general practice of not quoting statutory authority for decisions taken by the Government”. 44

During his first year in the Dáil, Costello made sensible, if sometimes over-lengthy, contributions on matters including Road Traffic, National Health Insurance and Workman’s Compensation Bills, where his legal background and knowledge of the Attorney General’s Office stood him in good stead. Some of his most trenchant interventions concerned the Government’s plan to cut Civil Service pay. Fianna Fáil in opposition had championed the cause of middle and lower grades in the Civil Service, with de Valera complaining that their pay was “in most cases … barely sufficient to meet the costs of the maintenance of a home”. 45 In Government, of course, it was a different matter. The 1933 election had been precipitated by a threat from Labour to vote against pay cuts—once returned with an overall majority, the Cabinet agreed to press ahead with reductions. 46

The economies were billed as “temporary”, but Cumann na nGaedheal strongly opposed them, with Costello taking a particularly strong line against the “immorality” of the proposal. He also had harsh words for James Dillon and Frank MacDermot of the Centre Party, who proposed that the reductions should apply to TDS as well as civil servants. He began his contribution by apologising for missing the start of the debate, as “unfortunately I am under the necessity of earning my own living”—not for the last time, he had been in the Four Courts when the debate began. He then claimed that the £360 per year allowance for TDS was too low, rather than too high, and that very few Deputies would have a profit out of such a sum, particularly after “the demands made upon him by his constituents and by others all over the country in respect of donations to charitable purposes and subscriptions to different objects”. Costello accused the Minister for Finance, Seán MacEntee, of merely pretending to save money. He also admitted the previous Cumann na nGaedheal government had made mistakes in cutting the old age pension and the salaries of Gardaí and teachers, but had made a definite decision not to cut the pay of civil servants. He pointed out that the new ministerial salaries introduced by Fianna Fáil were after-tax figures, while the Cabinet had also given themselves free cars. “The man who holds the position that I held as Attorney-General has these perquisites in addition to £1,500 a year, free of tax, and liberty to get as much money as he can by private practice.” But the core of his argument, to which he would return again and again, was that the previous government had agreed with the Civil Service unions a guarantee of their pay in 1929 as a solution of the Wigg–Cochrane case. Costello said the agreement he had reached with Bill Norton and other union leaders on the issue was “my greatest achievement as Attorney General”. If the Government could now cut Civil Service pay, there would be no guarantee they could not double the cuts the following year. 47

Costello put down a series of amendments at committee and report stages designed to protect the pay of transferred officers, those who had moved from the British to the Irish Civil Service after the Treaty, arguing that the Government was breaking a promise as well as a contract, which “is a wrong both legally and morally”. 48 He even suggested that de Valera and his ministers should seek theological advice to “find out whether, according to Catholic principles and Catholic theology, the provisions of the Bill … are not immoral”. 49 Whether MacEntee looked into his soul or not, when the Bill returned to the Dáil to discuss amendments passed in the Seanad, the Minister introduced his own amendment to exclude transferred civil servants from the cuts. Costello expressed satisfaction at having “fathered this particular amendment”, while MacEntee acknowledged that it had been “agitating my mind for a considerable time, an agitation which was brought into focus during a debate which took place here on Deputy Costello’s amendment”. 50 Costello was to continue his interest in Civil Service pay throughout the 1930s, supporting calls for an arbitration scheme—a fitting tribute to his father’s early activity in the Civil Service Guild (see Chapter 1). His position drew favourable comment from the Civil Service Journal, 51 and also brought him into close co-operation with Labour leader Bill Norton, which was to prove useful in 1948.

But the main political issue of 1933 and 1934 related not to hair shirts but to blue shirts. The Army Comrades Association had been formed in February 1932 by Colonel Austin Brennan and Commandant Ned Cronin, ostensibly as a self-help group for ex-servicemen. In August Brennan was replaced as President by Dr T.F. O’Higgins, brother of Kevin and Cumann na nGaedheal TD for Leix-Offaly. The new President claimed the ACA was “a benevolent body, engaged primarily in efforts to alleviate the hardships that fall on unemployed and disabled ex-members of the Army”. But he stressed too the organisation’s opposition to communism and support for free speech, deprecating “the new fashion of branding as ‘traitors’ certain public men with whom we … had the privilege of being associated in defence of the State”. 52

While some in the movement, such as Ernest Blythe and Desmond FitzGerald, may have been attracted to fascist ideologies, other leading figures stressed the defence of free speech as the main aim. Shortly after the ACA was founded, Mulcahy urged a non-violent approach, stressing that the organisation had nothing to do “with mob violence whether of the Communist or the Fascist type”, having been established to save the institutions of the State “being overpowered from the outside or … destroyed or rotted from the inside”. 53 Half a century later, James Dillon said they had “fought a desperate battle for the preservation of free speech in this country. And let it never be forgotten that we could not have won that battle but for the Blueshirts …” 54 As we have seen, theACA was heavily involved in the 1933 election campaign, guarding political meetings against Republican attack. In March 1933, the blue shirt and Fascist-style salute were adopted. As John M. Regan has pointed out, while the shirt had an obvious association with Continental fascist organisations, it was also very similar to the official Garda shirt, and therefore “reinforced the self-perception that the association as a police auxiliary was an unofficial and voluntary arm of the state”. 55

The economic war with Britain, sparked by de Valera’s withholding of the Land Annuities, helped both to increase support for the Blueshirts and to radicalise them. While British economic sanctions hurt large farmers, they still had to pay the annuities, which were now retained by the Irish Exchequer. Costello had been counsel in an attempt to have the courts decide whether the Government was bound to pay the annuities before the 1933 election, an attempt derailed by the re-elected Fianna Fáil government, which passed legislation, as Costello later indignantly recalled, “for the specific purpose of putting an end to that action”. 56 The former Attorney General wasn’t in much position to complain, as this was exactly the strategy he had recommended to deal with Privy Council decisions.

Legal action on the annuities was to continue side by side with political action, with Costello playing a leading role. In fact, the legal side of the struggle continued long after the demise of the Blueshirt movement. In 1935 Costello was lead counsel in a case taken by Louth County Council against the Government, which had withheld the Agricultural Grant because of the failure to pay annuities to the State. 57 The following year he won £400 damages against the Dublin County Sheriff for failing to secure an adequate price for seized goods. Costello won the case after exposing the ignorance of the official concerned of his legal duty to the person whose goods were seized—the judge said the sheriff was supposed to “hold the scales of justice evenly between both parties”. 58

As rural unrest grew in 1933, the Executive Council began to take the ACA more seriously. At the end of May it ordered the dismissal of Reserve Officers known to be members of the organisation, and requested a report on the strength, armament and activities of the ACA, as well as of the IRA. 59 But it was the appointment of sacked Garda Commissioner Eoin O’Duffy to lead the ACA on 20 July that made a confrontation inevitable. At the same time as O’Duffy assumed the leadership, the Blueshirts were taking steps to revive the annual commemoration of Collins, Griffith and O’Higgins, which had been abandoned when Fianna Fáil entered government. On 21 July, Ned Cronin, Secretary of the National Guard, wrote to Government officials seeking permission to lay a wreath at the Cenotaph in Leinster Lawn on Sunday 13 August. He explained that as well as relatives of the dead leaders, the ceremony would include “about fifty members of the ACA with buglers”. 60 The Executive Council decided that admission to Leinster Lawn should be by ticket only, and that only individual applications would be accepted, 61 to make an organised Blueshirt attendance more difficult.

On 30 July, the Government revoked firearms certificates held by, among others, former ministers and leading supporters of the Opposition, including Patrick McGilligan, whose home had been raided by the IRA just a week before. 62 In the Dáil, Cosgrave put down a motion criticising the move, claiming the withdrawal of licences from “law-abiding citizens” was causing uneasiness in the public mind. Costello delivered a blistering attack on the Minister for Justice, claiming his “so-called explanation … would not deceive a baby”. He ridiculed the excuse that the guns had been withdrawn for stocktaking, pointing out that one TD had paid his five-shilling fee for a firearms certificate on Friday, only to have it withdrawn on the Saturday. He also criticised de Valera for his “smiles and sniggers” during the debate. 63

The Government’s next move was more extreme. On 11 August, two days before the planned parade, de Valera reactivated Article 2A of the Constitution and banned O’Duffy’s march. While it seems unlikely that the General really intended to emulate Mussolini’s “March on Rome”, he had given the Government an excuse to take strong measures, allowing de Valera to resurrect emergency legislation without arousing opposition from militant Republicans 64 —who would later, of course, be its chief victims. Later in the month the Government used the emergency powers to ban the National Guard, which O’Duffy immediately renamed the Young Ireland Association. Believing the ban to be unjustified and politically motivated, the Opposition—Cumann na nGaedheal and the Centre Party as well as the Blueshirts—now had strong grounds for believing that the Government was intent on moving against them all. The impetus towards unity became irresistible.

On 9 September, agreement was reached on a merger between Cumann na nGaedheal, the Centre Party and the Blueshirts, with O’Duffy as leader. The new party was called Fine Gael, or the United Ireland Party—the latter name was used more in the early days, but was eventually supplanted by the former. The National Executive was made up of six nominees of each of the constituent parts, with Costello one of the Cumann na nGaedheal nominees, along with former ministers Mulcahy, John Marcus O’Sullivan, FitzGerald-Kenny and Blythe, and former Labour TD Dan Morrissey. Cosgrave was leader in the Dáil, and one of no fewer than six Vice-Presidents. 65 Costello later claimed to have been unhappy with the choice of O’Duffy, but said it was necessary in the interests of unity. 66 With the benefit of hindsight, he described the General as “the world’s worst politician … he was a man of great integrity … but he had no conception of what the rough and tumble of political life meant”. 67 He also blamed the leaders of the Centre Party for insisting on O’Duffy as leader instead of Cosgrave. 68

It was understandable that MacDermot and Dillon didn’t want to serve under Cosgrave, whom they had opposed when he was President of the Executive Council. They actually wanted former Agriculture Minister Patrick Hogan, rather than O’Duffy, to take the leadership, but Hogan rejected the offer. In any event, while MacDermot and Dillon “could be forgiven for not fully appreciating O’Duffy’s pedigree … the former Ministers could not plead such innocence”. 69 Why did Cumann na nGaedheal agree to be led by the man they had planned to sack as Garda Commissioner? O’Duffy’s biographer has pointed out that from the perspective of the Opposition, “Fine Gael represented a defensive merger against a government which was assaulting its political and economic liberties.” It later transpired that Fianna Fáil was not planning to outlaw political opponents—but that wasn’t how it appeared at the time. 70

O’Duffy also regretted the merger in later life, but at the time it made sense for him too, as it would be more difficult for de Valera to ban the Blueshirts if they were part of the main Opposition party. While Blueshirts automatically became members of Fine Gael, the opposite was not the case. 71 Some Fine Gael TDS were enthusiastic wearers of the shirt, with 14 having their names taken by Gardaí when they wore them in the Dáil—including Dr T.F. O’Higgins, Desmond FitzGerald, Gearóid O’Sullivan and Patrick Belton. 72 Costello was notably not among their number.

The first meeting of the newly formed Fine Gael parliamentary party was held on 28 September, with Costello among the 42 TDS and 10 senators in attendance. 73 The following day, Frank MacDermot moved a Dáil motion accusing the Government of being “unjust and oppressive” in its use of the Public Safety Act. The motion followed the arrest of four prominent Blueshirts (including Cronin and Belton) after disturbances at a sale of cattle seized for the non-payment of annuities. They were the first to be tried by the reconstituted Tribunal (all were found guilty). 74 In his contribution, Costello criticised de Valera’s public comments about the case as potentially prejudicial, and said the only justification for the use of the Act would be that “the very foundations of the State are being menaced in such a way that the ordinary institutions of the State are not able to cope with the menace”. He pointed out that the Government had not moved against the ACA, or the blue shirt, until General O’Duffy took over the leadership. And, the former Attorney General insisted, there was no law in the country to prevent him, or anybody else, from wearing a blue shirt on a public platform or anywhere else. 75

In the course of the debate, Seán Lemass indicated that this situation might change, with a prohibition likely on the wearing of blue shirts. More dramatic was a claim by de Valera that Richard Mulcahy had met the British Minister for War, Lord Hailsham, in Glasgow. This allegation was immediately denied by both men. 76 Mulcahy’s visit to Glasgow had in fact been a holiday with family friends, and the allegation astonished him. 77 He indignantly rejected the implication that he had been seeking arms for the Blueshirts and demanded that de Valera establish a tribunal to inquire into the matter. The following week de Valera had to tell the Dáil that the source of his information (apparently a journalist with the Irish Press) had admitted that the story wasn’t true. He apologised to Mulcahy, but Costello badgered the President, asking if the source would be prosecuted for criminal libel. 78

In November, Fine Gael finally got round to formally agreeing its policy at a Standing Committee meeting attended by Costello. 79 The 25 points included the voluntary reunion of Ireland as a member of the British Commonwealth; direct negotiations with Britain to end the Economic War, with complete remission of Land Annuities and Agricultural Rates pending a settlement; “unconditional opposition to Communism”; abolition of Proportional Representation; organisation of “agricultural and industrial corporations with statutory powers … under the guidance of a National Economic Council”; a Reconstruction Corps to put able-bodied unemployed people to work; a Ministry of Housing; encouragement of sporting activities, as well as “the awakening of a spirit of self-reliance, dignity and discipline in the rising generation, and the inculcation through the Young Ireland movement of the ideal of voluntary disciplined public service”; maintenance of free speech; and the preservation of the Irish language. 80

The document was a compromise between the various constituent parts of Fine Gael, and while there were echoes of Mussolini—such as the emphasis on sports and voluntary disciplined public service, as well as the agricultural and industrial corporations—it was certainly far from fascist. Costello later downplayed the influence of corporatism on Fine Gael. “I don’t know very much about it, never did, but that was the thing that was hung on to by O’Duffy and some—only some—of his followers … I didn’t stand for it, Cosgrave didn’t stand for it, the bulk of the party didn’t stand for it, and certainly there wasn’t two per cent of that amalgamated party would have anything to do with Fascism.” 81

Meanwhile, O’Duffy’s increasingly intemperate speeches were causing concern in the ranks of the new party. According to Costello, “he had been causing us tremendous trouble by speeches around the country, you never knew what he was going to say”. In Ballyshannon, Co. Donegal, on 9 December, he gave the Government its chance with a particularly incendiary attack: “I say as a Republican myself that … whenever Mr de Valera runs away from the Republic and arrests you Republicans, and puts you on board beds in Mountjoy, he is entitled to the fate he gave Mick Collins and Kevin O’Higgins. He does not understand the people of this country because he is a half-breed.” The detective inspector who served a summons on O’Duffy reported that in his opinion “the General was under the influence of alcohol”. As John Regan observed, “to elect to the leadership of the new party either a covert republican or a drunk would have been unfortunate. To elect both was carelessness.” 82 O’Duffy defiantly insisted that he would address his next scheduled meeting, at Westport on Sunday 17 December, where he was arrested, complaining later that members of the force he had created dragged “their former commissioner ignominiously through the streets”. 83

On the Monday, Costello made a late-night application at the home of High Court Justice Johnston for an order of Habeas Corpus to secure O’Duffy’s release. The judge wouldn’t give the order, but did give the legal team (which included McGilligan as well as Costello) leave to appeal to the High Court. 84 Mr Justice O’Byrne found, in effect, that O’Duffy had been arrested for wearing a blue shirt, which was not a crime, rather than anything specified under Article 2A, and ordered his release. 85 As his biographer has pointed out, it was “the sort of technical decision that had infuriated O’Duffy when commissioner”. 86 But it was a major propaganda victory for the Blueshirts, and a legal triumph for Costello, who after all knew better than anyone the intricacies of Article 2A. His successor as Attorney General, Conor Maguire, noted that the Public Safety Act was “a very unwieldy instrument save for the one purpose it was designed, viz. to deal with the IRA”. 87 But the Government was determined to take action, and two days after his release, O’Duffy was arrested on five new charges.

The summons, issued on 22 December, ordered him to appear before the military tribunal at Collins Barracks on 2 January. The first two charges related to membership of an unlawful association contrary to Article 2A—the association in question being the National Guard between 22 August and 8 December, and the Young Ireland Association between 8 and 17 December. The other charges related to his speech in Ballyshannon—he was charged with sedition, incitement to murder President de Valera, and attempting to incite murder. 88 In an affidavit, O’Duffy pointed out that the Young Ireland Association had been dissolved on 14 December after a Government ban (it was immediately replaced with a new organisation, the League of Youth), that the National Guard ceased to exist in September, and that at the time of swearing his affidavit he was not a member of either organisation (which was hardly surprising if they had ceased to exist). He further denied sedition or in any way inciting or attempting to incite anyone to murder de Valera at Ballyshannon or anywhere else. 89

On New Year’s Day, his legal team won a conditional order from the High Court, which gave the tribunal 10 days to show why it should hear the charges. The tribunal suspended its case against O’Duffy pending the outcome of the High Court case. On 21 March, the High Court ruled that O’Duffy could be tried on the first two charges but not on the other three, which should have gone before the ordinary courts. Mr Justice Sullivan, President of the High Court, said it would be “a revolting absurdity” to suggest that the tribunal could try any offence of any description, or that it could not be held to account by higher courts. While the charges of illegal membership were within the scope of the tribunal, because they were based on Article 2A, the sedition and conspiracy charges were not. The Justice said those offences could only be dealt with by the tribunal if a minister certified that the offences were aimed at impairing or impeding the machinery of government or the administration of justice. 90 O’Duffy appealed the decision to allow the first two charges to the Supreme Court, where Costello was again on his legal team, along with A.K. Overend, Vincent Rice, Cecil Lavery and Patrick McGilligan. 91 As it happened, the appeal was not pursued, being overtaken by events.

Costello scored another significant legal victory in the case of Captain Patrick Hughes, who had been sentenced to two years in jail by the tribunal for the attempted bribery of a detective. The High Court accepted Costello’s argument that the tribunal did not have jurisdiction to convict him for the offences stated. 92 As a result, the Executive Council had to release 33 prisoners convicted by the tribunal as they were liable to successful challenge in the High Court. 93 In fact, the legal onslaught on the Blueshirts was remarkably unsuccessful (partly because of the way legislation was worded, partly because of an absence of illegal behaviour). Of the total of 38 Blueshirts charged with membership of an unlawful association after August 1933, 13 had a nolle prosequi entered, seven were found not guilty, 13 received non-custodial sentences, and just five were jailed. 94 As Costello put it later in the Dáil, “We found a way … to meet the injustices meted out to some of our supporters … We found gaps through which people could creep.” 95

In an effort to close some of those gaps, the Government introduced legislation banning the wearing of uniforms on 23 February—the Bill on which Costello made the infamous speech quoted at the start of this Chapter. When the Seanad refused to pass the Bill, thereby delaying its enactment by 18 months, de Valera published legislation to abolish the upper house. This action “illustrated why de Valera’s commitment to democracy was genuinely doubted by the opposition”. 96 Costello played a prominent role in opposing the abolition of the Seanad, claiming that it was “really the only safeguard which the Irish people have at the present moment for the safeguarding of their rights and liberties”. He claimed de Valera had introduced it in “a fit of Presidential pique”, and that if the upper house was abolished the Constitution could be amended in any way the Executive Council saw fit. “A decree of the Executive Council will be law in an hour if they like, and a resolution of a Fianna Fáil club will be law in half-an-hour … We believe that the Government … will be hitting the death blow at democratic rights in this country.” 97 He also opposed the abolition of university representation in the Dáil, taking the line that equal opportunities, rather than equal rights, were the essence of democracy. Everyone had the opportunity of going to university, and therefore “the person who has idled around as a corner-boy” should not have the same rights as he, who had “worked hard all the years of my life”. 98

Following the successful legal challenges to the military tribunal, the legal wing of Fine Gael initiated another case, seeking a High Court direction that the League of Youth was not an unlawful organisation. The effect of this was to put a stop to the Government’s serial banning of each new identity adopted by the Blueshirts. Costello was one of the plaintiffs in the case, as well as a member of the legal team. The argument advanced was that the League was “an integral part of United Ireland and subject to the control of the National Executive”, adding that the party was “the recognised constitutional Opposition party”. The statement of claim set out the objectives of the organisation, and pointed out that while the Executive Council had declared both the Young Ireland Association and the National Guard unlawful, it had not given “any indication of acts alleged to have been done for either of the said Associations grounding or justifying the opinion of the Executive Council”. The Government’s defence was based on Article 2A, arguing that the declaration by the Executive Council that the League of Youth and the National Guard were unlawful was by definition proof that they were; and that if the League of Youth was similarly declared unlawful, the courts had no power to interfere in the Executive Council’s action. The Attorney General argued that the plaintiffs were seeking “judicial declarations of an academic character … upon a matter as to which jurisdiction to pronounce an opinion, conclusive for all purposes, is by the Constitution conferred upon the Executive Council”. 99 By the time the court finally ruled in favour of Costello and the other plaintiffs, the League of Youth had ceased to exist 100 —but the tactic had succeeded in preventing another Government ban.

Costello was also one of the counsel in an unsuccessful attempt to have Article 2A declared unconstitutional, after leading Blueshirt Jerry Ryan was charged with shooting with intent to murder. A Department of Justice memorandum on the case noted that Costello had been Attorney General when the article was introduced in the first place. “Making all allowances for the latitude allowed to politicians and lawyers there is something very strange and distasteful in this extraordinary volte face: it certainly makes it very difficult to believe that the persons concerned are guided by any principles.” 101

De Valera’s attempts to put the Blueshirts on the wrong side of the law met little success. Luckily for him, the spur of the hardship caused by the Economic War led O’Duffy into increasing extremism which caused the movement to implode. Urging farmers to withhold annuities and rates in protest at the Economic War made sense to many in the party’s grassroots, but it greatly alarmed the constitutional wing of the party, including Costello, Cosgrave and Dillon. O’Duffy’s rhetoric was equally disturbing. According to Costello, Dillon upbraided the general, telling him that he was magnificent as long as he stuck to a script, “but let any old woman in the crowd shout ‘Up de Valera’ and God only knows what you will say!” 102

With O’Duffy encouraging the Blueshirts to withhold annuities and resist the seizure of cattle, clashes with the Gardaí increased. On 13 August 1934, a young member of the organisation, Michael Lynch, died during an attempt to disrupt a sale at Marsh’s Yard in Cork. The Blueshirt annual conference in the Mansion House the following weekend adopted a motion calling on farmers not to pay their annuities unless the Government agreed to suspend collection for the duration of the depression. Michael Tierney pointed out the choice facing Fine Gael: “Reject the resolution and weaken O’Duffy, or accept it and take part in an organised campaign of resistance to payment which I don’t think any responsible political party could dream of standing over …” 103 When the National Executive of Fine Gael met on 30 August, a compromise proposal was put forward, declaring that members should only resist cattle seizures in ways “consistent with the moral law”. Costello, along with Tierney and Patrick and James Hogan, strongly argued that the word “moral” should be deleted. This would have kept Fine Gael within the law of the land, rather than the less easily defined moral law. According to Tierney, Cosgrave resisted this change because “he is keen on morality!” 104

In a letter to Seán MacEoin, O’Duffy complained that the National Executive meeting “shattered all my hopes” for the National Guard, particularly “all the talk we had about the moral law … I had two letters today from bishops, advising me of the position—neither even referred to the moral side, and I do know that the bishops will keep us safe on this …” He added that he was still undecided about “what is best to do in the interests of the organisation—to get out quietly, or to try to carry on for another while”. 105 James Dillon attempted to broker an agreement that would keep the General under control, with weekly meetings between him and the Vice-Presidents “to discuss all matters arising from the activities of the League of Youth”, written scripts for all speeches, and written rather than oral replies to press queries. 106

O’Duffy’s letter to MacEoin indicates he wasn’t happy with the arrangement; a letter to Costello shows that Cosgrave wasn’t happy either. He complained that O’Duffy regarded party policy as “elastic”, to be changed as circumstances dictated. “He objects to the strait jacket and apparently has little thought for the strait jacket he puts on others.” Cosgrave saw himself at odds with Dillon, who would be happy with “a patch up”, while he believed they were faced with “a vital and fundamental difference of opinion”. Cosgrave said that “so far as I am personally concerned the Government political policy is safer than the General’s”. He thought it might be possible to reach a temporary accommodation with O’Duffy, but that rehabilitating him in the public mind would be “an almost insuperable job”, that he was quite likely to break his word, and that “on a platform with others he may at any time precipitate a controversy”. 107 On 20 September O’Duffy submitted his resignation after failing to reach agreement with the three Vice-Presidents he had been dealing with, Cosgrave, Cronin and Dillon. 108 Ned Cronin took over as head of the League of Youth, but was in turn asked to resign in September 1936. 109 He emigrated to England, having ruined himself financially through his involvement in the Blueshirts. Costello later invited him to return to Ireland to act as an advisor to his first Government, but he died on his return to Dublin. 110

In a front bench reshuffle following O’Duffy’s departure, Cosgrave asked Costello to “accept a roving Commission over certain … general matters”. 111 He fulfilled this commission, speaking on a wide range of subjects, including external affairs, finance, and of course legal matters. He also addressed other issues—such as the teaching of Irish. While he supported the aim of restoration, he accused the Government of attempting to “ram the Irish language down the necks of the Irish people”, saying that an exclusive concentration on the language “will reduce the people of this country to nothing less than a set of ignoramuses”. He accepted that the policy of teaching through the medium of Irish had been followed by the Cumann na nGaedheal government as well, but argued that it was “going to kill the Irish language”. 112 In contributions foreshadowing his establishment of the Arts Council as Taoiseach, he stressed the importance of teaching art in primary and secondary schools “with a view to its subsequent application to industry”. 113 He also wanted the School of Art to take up this aspect, pointing out that “the biggest industrial firms in England pay huge salaries to the best artists they can lay their hands on for designing the goods which they hope to put on the markets of the world”. 114

His Dáil speeches revealed a genuine concern for his poorer constituents, particularly regarding their housing. In 1934, he said he had “seen pretty bad slums in the City of Dublin—I know them fairly well—but I have never seen anything to equal the housing conditions in the village of Dundrum”. 115 A year later, he spoke of the difficulty of dealing with constituents from Ringsend seeking houses—“it is a heart-breaking experience for a public representative to have to tell the people who come up with genuine stories of housing conditions, which are appalling to listen to, that he is unable to do anything for them …” 116

He showed an interest in foreign affairs, which Cosgrave recognised at the start of 1936, when he appointed Costello and John Marcus O’Sullivan as front bench spokesmen on External Affairs. 117 Costello had already criticised de Valera (as Minister for External Affairs) for not giving a fuller exposition of the international scene each year on his Department’s Estimates. “I shall continue to press as long as I am on this side of the House, that the Department of External Affairs should be taken seriously.” 118 He also repeatedly stressed his belief in the importance of Commonwealth membership, which he believed gave Ireland “an opportunity of exercising a very deep, wide and beneficent influence in international affairs”. 119 There were also, he argued, “solid practical advantages for our people” in the Commonwealth, especially when abroad. 120 As he put it in an address to the National University branch of Fine Gael: “I have no objection to being what is called a British subject, but I am quite certain that I am not going to lose my Irish nationality, and the two things are not incompatible.” 121 He accepted that “if we had a Republic it would be another matter”, but while Ireland was in the Commonwealth “we have very practical rights which can be obtained as a business proposition for the citizens of this country”. 122 He also urged de Valera to send representatives to a planned Commonwealth Economic Conference, arguing that it would allow him to “put his hands as deeply as he possibly could into the pockets of John Bull and extract as much British gold as he could extract”. 123

Costello also argued that Commonwealth membership was “the only possible method of achieving … the unity of Ireland … [as] a free and independent sovereign … state … the outstanding political problem in the country at present was not the question of separation, or to be or not to be a Republic, but the unity of our native land in one nation and under one flag”. 124 Those comments were made in the course of a by-election campaign. At other times, Costello advocated a more circumspect approach, calling in the Dáil for a policy of silence, “broken only very occasionally, merely to show that we have not forgotten our brethren in the North … The less that is said about it the better … Discreet work behind the scenes is the way to end Partition.” 125

As a leading barrister, he was a knowledgeable contributor to debates on legislation affecting the practice of the law, admitting that he did so at least partly as “a member of a trades union”. 126 He occasionally explicitly stated that he was giving the views of the Bar Council, as when urging that the Court of Criminal Appeal should be made up of three High Court judges, instead of the existing composition of two High and one Supreme Court judge which was favoured by the judiciary. 127

Costello objected vociferously to the Courts of Justice Bill which provided among other things for the appointment of two extra Supreme Court justices, on the grounds of cost and the lack of work for the new judges to do. His explanation of the terms of the legislation, and the £3,000-per-year cost of the new judges, convinced the Fine Gael parliamentary party to oppose the Bill. 128 In the Dáil, he pointed out that much of the ordinary work of the courts had been farmed out by government to the military tribunal, or the new Land Commission Tribunal, or to County Registrars (who had taken over land annuities cases). He complained that “there never was, certainly not in the last twenty years, a period when there was so little business doing. The Bar is feeling the pinch and … there never was so little business in the Supreme Court in my time.” He also made a heartfelt case for the provision of stenographers in all High Court cases, rather than having to rely on the judge’s notes, and objected to provisions for disciplining district justices, arguing that it would compromise their independence. 129 He later claimed that the extra appointments would give the Government “a blank cheque to raid the taxpayers’ resources and also to rob litigants”, who he argued would face higher costs. The Attorney General, Conor Maguire, dryly observed that “Deputy Costello is carried away by his own oratory, and I doubt if his belief is as deeply seated as his words would suggest.” 130

As the Courts of Justice Bill made its way through the Dáil, the Chief Justice, Hugh Kennedy, urged the Minister, P.J. Ruttledge, to make the wearing of wigs by judges and barristers optional, as well as abolishing the practice of addressing judges as “My Lord”—he suggested either the Irish “A Bhreithimh” or “Sir”. Ruttledge agreed in principle, but Maguire warned that the abolition of wigs would “arouse a storm of protest amongst members of the Bar and would be likely to give rise to fierce controversy”. 131 In the Dáil, Costello sought an assurance from the Minister that the representations he had received “about robes and modes of address do not affect members of the Bar”—indicating he was siding with tradition rather than with Kennedy, his former mentor. 132 In a debate during the war on the effect of clothes rationing, he raised the plight of newly qualified barristers whose “coupons are all swept away buying wigs and gowns … They are as necessary for us in earning our living as a knowledge of law is.” 133 His traditionalism on legal matters was also evident when a High Court judge suggested Ireland might adopt the Continental system of examining magistrates. Costello told the Irish Times that the existing system, derived from Britain, was “the finest in the world. Anything that is wrong with the system arises from abuse and non-adherence to its fundamental rules.” 134

One constant theme pursued by Costello was the question of arbitration in the Civil Service—a question that was to cause (or at least give de Valera an excuse to call) the 1938 election. In July 1935, he closely questioned the Minister for Finance, Seán MacEntee, on the details of an arbitration scheme which had been put to, and rejected by, the staff associations. The exchange, incidentally, is a very good example of Costello’s cross-examination technique, and of MacEntee’s evasive style. The Minister rejected Costello’s suggestion that a deadlock existed between him and the associations, and declined to give any of the relevant details that were sought. 135 Two days later, Costello raised arbitration on the adjournment, recalling de Valera’s promise in January 1932 to set up an Arbitration Board and adding, “That specific promise was given, and I think it is incumbent on every party in this House to see that this promise is kept.” 136

As a practising lawyer, he also made substantial contributions to technical pieces of legislation, including the marathon debates on the Insurance Bill. There was at least an element of conflict of interest in his contributions. According to the Irish Times, he had been one of a number of leading barristers engaged by the five Irish insurance companies “to look after their interests … It is understood that the lawyers will be asked to advise as to the reactions of the Bill on the interests of the companies concerned, and presumably to suggest amendments when the Bill reaches the Committee stage.” 137 During the debate, Lemass accused him of arguing that “insurance law should be framed to meet the desires of the insurance companies”. 138

This was slightly unfair—Costello made many sensible suggestions, some of them accepted, and spent a great deal of time on the legislation. At one point, he tormented Lemass over his proposal that life and other insurance should be separated, a legal requirement in other countries according to the Minister. Along with McGilligan, he rather unkindly pressed Lemass to give details of the legislation in other countries, details which were clearly not in his brief and which he couldn’t supply. 139 The next time the Bill was before the House, the Minister was able to quote chapter and verse of the foreign legislation, but it had been an embarrassing lapse for the normally well prepared Lemass.

There was certainly an element of self-interest in his opposition to the proposed tribunal to arbitrate insurance claims. He said such matters should be dealt with in court, rather than in “bastard tribunals that would be held in a hole-and-corner way by non-lawyers and behind closed doors”. 140 According to a legal colleague, passage of the Bill led Costello to lose cases from Irish Life, but he apparently accepted the loss philosophically, observing that “God never closed one door but He opened another.” 141

Another bugbear was the powers of the Revenue Commissioners, which he urged should “be exercised reasonably … not … used as an instrument of tyranny.” He argued against the reopening of tax returns by the Revenue, citing the legal principle that “it is better for the law to be certain than just. It is better that there should be some finality to these transactions even though a fraudulent person gets away with it occasionally, and it is not very often that a fraudulent person gets away with anything very substantial …” 142 On another occasion, responding to a charge by MacEntee that he was being unfair to the Revenue Commissioners, he argued that he was not interested in their “tender feelings”, but in those of the taxpayer, “for whose very tender feelings the Revenue Commissioners have no feelings whatever, whether he is suffering any hardship or not”. 143

During Cecil Lavery’s successful by-election campaign in Dublin County, Costello argued that “if Fianna Fáil retained power much longer it might be impossible for a future Government to save the country from the mess” it had caused. 144 His jaundiced view of Fianna Fáil was reinforced later that month with a controversy over alleged corruption involving mining leases in Wicklow. The allegations, made by Patrick McGilligan, were that two members of the Government party, Deputy Bob Briscoe and Senator Michael Comyn, had secured the leases through political influence with the Minister, Seán Lemass. In the debate on the establishment of a select committee to investigate the controversy, Costello objected to the limited terms of reference, accusing Lemass of “trying to side-track the real issues”. Lemass confirmed that the Committee wasn’t being established to try him or his department, but was “set up in the first instance to try Deputy McGilligan … to find out if he had any foundation for these allegations”. 145 Costello was appointed to the Committee, which was chaired by Labour leader Bill Norton. But a row was caused by Fianna Fáil’s refusal to let McGilligan be a member—a refusal characterised by Costello as the first time in the history of the State that the Opposition had been denied the right to nominate whoever they wanted to such a Committee. The reason given was that McGilligan was the accuser—but as Costello pointed out, Lemass was “going to make him the accused”. 146

However, Costello did an effective job of making Department officials feel like the accused—R.C. Ferguson, Assistant Secretary of Industry and Commerce, “protested that the cross-examination of Mr Costello was very unfair”. He had been under pressure as to whether he had treated the application by Briscoe and Comyn any differently because they were members of the Oireachtas, and of the Government party. He insisted that he treated it as he would from any member of the public, and that he had not consulted Lemass about the matter. 147

Costello evidently found the Select Committee approach effective, for he sought to use it for an investigation into the sacking by the Government of the Secretary of the Department of Local Government, E.P. McCarron. There were a number of reasons for Costello’s interest, apart from the obvious political advantage of embarrassing the Government. The first and most important was his long-standing support for the proper treatment of officials—as he said during the debate on his motion to appoint a Select Committee, his first speech in the Dáil concerned the sacking of another senior official (O’Duffy). Secondly, McCarron was also a former O’Connell School boy. And thirdly, the immediate cause of his dismissal was an appointment to Grangegorman Mental Hospital—an institution with which Costello’s father had been involved. Costello argued that it was in the public interest “that public officials—both governmental officials and officials of local authorities—should be assured of the security of their tenure, and that they should feel that in exercising their functions they are entitled to exercise them irrespective of the political policy of the particular Government for the time being”. He said ministers were entitled to receive independent advice, “otherwise the Civil Service is nothing but a corrupt political machine and the sooner it is got rid of the better”. 148 The Government treated the motion as one of censure, and it was duly defeated, de Valera arguing that a Dáil committee could not review or revise the decisions of the Executive Council, because “on that day that Government has to disappear”. 149

In opposition, Fine Gael was very much in the doldrums. In January 1935, a meeting of the party’s Standing Committee had to be abandoned for the third week in a row because of poor attendance. Costello was one of just four members to show up. Ned Cronin, who was in the chair, complained it “was impossible to have any work done either at Headquarters or in the country so long as members of the Executive Committee … showed such apathy in attending meetings”. 150 Costello played a prominent role within the organisation, serving on committees to prepare statements of the party’s policy and to select by-election candidates. 151 He was also on a committee set up after “grave dissatisfaction was expressed at the poor attendance of the Party in the Dáil”. 152 He himself couldn’t be accused of not pulling his weight—he was a frequent, forceful and effective contributor to Dáil debates. But he was far from being a full-time TD, with his appearances in the Chamber largely limited to the late afternoons or evenings—he urged the Minister at one point during the debate on the Courts of Justice Bill to delay the resumption of the debate “until we are able to be here in the House when we come from court tomorrow”. 153

Behaviour like this understandably contributed to an image of Costello as something of a political dilettante. As a supporter of Noël Browne put it, he and his ilk were guilty of “turning up in the Law Library and earning your income down there and then strolling down to the Dáil and getting another job down there as part-time, which is what the John A. Costellos of this world were at—they were immensely rich people dabbling in politics”. 154 In fairness, Costello never claimed to be a full-time politician—quite the opposite. He frequently said he would not like being a full-time TD. “One job helped the other, and politics helped to broaden attitudes. If you spend all your days at the law, you tend not to be able to talk about anything else.” 155 In a letter to Seán MacEntee, proposing a system of pensions for former ministers (from which he excluded former Attorneys General—it was a completely altruistic proposal), he said such pensions should not be so high that they would create “a class of professional politicians with no interest to serve but their own”. 156 After his retirement from politics, he said an election was unlikely in 1971 because at least 96 per cent of the Fianna Fáil TDS relied on their Dáil salaries for their livelihood. “It is an evil thing, which is a consequence of having full-time politicians in the Dáil.” 157

But Fine Gael’s problems went deeper than the desultory approach to Dáil business by many TDS. In a thoughtful letter to Cosgrave in September 1935, Mulcahy reported on his impression of the views of the public, gleaned when giving lifts to people around the country (curiously, he said he was “totally unknown to most of these people”, which even in a pre-television age seems a bit unlikely given his prominent role in recent Irish history). He said Fine Gael was not picking up support being lost by Fianna Fáil, partly because people thought they were the old Cumann na nGaedheal party “with a new name but without a new policy”, partly because they were viewed as “a new imperialist grouping to defend England’s interest in the Treaty”. 158 The latter point tied in with Costello’s experience during an election campaign in the 1930s. Waiting in Haddington Road for Mass to finish, he overheard two teenagers discussing the election, and one of them saying, “Sure that fellow Costello is only an old Englishman.” 159

Fine Gael had been well and truly lumbered with the reputation of being pro-British, and efforts by leading figures in the party, including Costello, to stress the benefits of Commonwealth membership added to that reputation. De Valera, on the other hand, largely ignored the Commonwealth. After the death of George V in January 1936, he refused to allow the Irish High Commissioner in London, John Dulanty, to sign the proclamation of accession for the new King as his counterparts had done. Dulanty still attended meetings of the High Commissioners, but confessed to his Canadian opposite number that he “felt like a whore at a christening”. 160 De Valera was planning to clarify matters in his new Constitution, then in gestation, but his hand was forced by the abdication of Edward VIII. He reacted by recalling the Dáil and introducing two pieces of legislation—one to remove all mention of the Crown from the Constitution, the other to authorise the King to act on behalf of the State in foreign affairs through the accreditation of diplomats and ratification of international agreements.

Costello made a forceful contribution on the proposed amendment of the Constitution. “This Bill creates a political monstrosity, the like of which is unknown to political legal theory … we are to have this extraordinary and ludicrous position—a state of affairs which will make us the laughing stock of international jurists throughout the world—that for one purpose we have no head of this State and for another purpose we have a foreign King as the head of our State. What sort of State is that at all?” He criticised de Valera for not consulting the other members of the Commonwealth (ironic, in view of his own actions in Canada 12 years later), and said in an important passage, which would later be carefully attached to the file dealing with the repeal of the External Relations Act, “I do not care what the position is going to be in this country from a constitutional point of view, provided we know definitely where we stand. I can understand the position, constitutionally and internationally, of this country being a member, a full, recognised, decent member of the British Commonwealth of Nations. I can understand a decent declaration of a republic. But I cannot understand the indecency which is being perpetrated on this country by this Bill … I want at least that it should be definite …” He also suggested that the new legislation actually invested the King “with greater authority, greater force and greater prestige than he had when his Kingship as head of our State was a mere fiction”. 161 Curiously, Canadian Prime Minister W.L. Mackenzie King made exactly the same point in the privacy of his diary, suggesting it would encourage a common policy on foreign affairs. “In trying to assert their nationalism, they have really made themselves more imperialistic than we who are retaining the Crown in internal as well as external affairs.” 162

When the External Relations Bill was introduced into the Dáil on Saturday 12 December, Costello criticised the first two sections, outlining that diplomatic representatives were appointed, and international agreements concluded, on the authority of the Executive Council. These were completely unnecessary, as they “merely express the existing practice, the existing state of affairs and the existing law of the country. Why then put them into a statute?” He also suggested that the effect of the Bill “which is to give us half a Crown is that it gives no Crown at all”, because it only conferred authority on the King as long as he was recognised as the symbol of the co-operation of Australia, Canada, Great Britain, New Zealand and South Africa. The Crown, he argued, was never recognised as the symbol of co-operation, but as the symbol of free association. Therefore, the Bill could never come into effect. 163 He tried on the Committee Stage to change the wording to “free association” to match the reports of various Imperial Conferences and the Preamble of the Statute of Westminster. De Valera said he was prepared to accept “association”, but not “free association”, as he had doubts about how free Commonwealth association really was. He also argued that they should not import phrases into legislation—a suggestion which brought an indignant response from Costello, who pointed out that the words had been put in the Statute of Westminster by the Irish delegation. “Co-operation” stayed, and Costello voted for the Bill along with the rest of the Fine Gael TDS. 164

He was to raise many of these issues again in the debates on de Valera’s new Constitution. But before dealing with that, we should return to where this chapter began, with Eoin O’Duffy. The ignominious end to his leadership of Fine Gael had not exhausted his crusading zeal—and the outbreak of the Spanish Civil War gave him just the crusade he needed. While his intervention in Spain turned out to be a bit of a disaster for him, for those who went with him, and indeed for Franco, it was taken seriously enough at the time. When de Valera introduced a Bill to legislate for non-intervention in the Spanish Civil War, Costello claimed it was not designed to honour Ireland’s international obligations, but to prevent O’Duffy bringing recruits to Spain. He added that some of those who went to Spain were strong supporters of Fine Gael, who had no sympathy with communism or fascism, but who “left good jobs for Spain in what they believed to be in the interests of their religion and not in the interest of Fascism”. He pointed out that if the Bill was passed, those who were already in Spain could not come home for a holiday and then return to the fighting. With considerable indignation, he claimed that this provision would even apply to the Catholic chaplain attached to O’Duffy’s brigade. 165 Some months later, he expanded on his views, saying that while they didn’t have enough information to form a proper view of the situation in Spain, it was clear that the Spanish government “stands for Communism” and therefore Ireland should not send a representative to it. He also said that they were not opposed to the policy of non-intervention—a statement seized on by de Valera, who observed that Fine Gael’s position hadn’t been so clear initially. 166

However, this was the last time O’Duffy would trouble Irish politics. New issues were looming—a new Constitution, a world war, a resurgent IRA—which would challenge the political elite, including John A. Costello.

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