Costello, John Aloysius (1891–1976), barrister, attorney general, dáil deputy, and twice taoiseach, was born 20 June 1891 at 13 Charleville Road, Cabra, Dublin, younger son and second among three children of John Costello, a Clareman who was a staff officer in the registry of deeds, and Rose Costello (née Callaghan), who came from Westmeath. At the time the elder John Costello was reputed to be a Parnellite. He was throughout his life active in charitable work and in the activities of the Father Mathew Hall in Church St. In retirement he was elected to the Dublin city council, where he served for six years until his death in 1936.
The family soon moved to 27 Rathdown Road off the North Circular Road, and the Costello boys were sent to school with the Christian Brothers in North Richmond St. John won a scholarship under the Fanning trust for the sons of civil servants, open to all schools and awarded on the results of the senior certificate examination under the Intermediate system. Supported by a grant under the scholarship of £50 a year for three years, he joined his elder brother, Thomas, a medical student, at UCD.
In 1911 John obtained a first-class degree in modern languages (including Irish). It may be that he did not always intend to go to the bar as, unlike most aspiring barristers at that time, he did not enrol at King's Inns until he had completed his primary degree. After graduation he remained active in the college debating society, the Literary and Historical (L&H), but won no medals and was twice defeated by large margins for the auditorship, once by Arthur Cox (qv). He joined with Cox in an unsuccessful attempt to prevent the admission of women students to the society. In the postgraduate LLB degree examination in 1913, Costello was awarded first-class honours, finishing third behind Cox and Ambrose Davoren. At King's Inns Costello won a prize awarded by the Law Students Debating Society for an essay on the brehon laws, later published by Studies. Significantly, he took no other part in the society, where he would have rubbed shoulders with students not of the catholic nationalist tradition. Academically he did well but was not outstanding; in his final year he came third out of eight in the Brooke scholarship examination. He was called to the bar in November 1914.
Early legal career, 1914–25
Costello joined the Munster circuit, where he was briefed mainly by solicitors in Clare. He felt that he was at a disadvantage at the bar because he was an ordinary Irish catholic, and that unionist barristers in the Law Library were not well disposed to him. He was, of course, embarking on practice at a time when many young barristers had answered the call to serve in the Great War, and most older barristers had family members or friends of his age serving.
Costello steered clear of any political involvement in the years of ferment that followed and concentrated exclusively on his practice. Hugh Kennedy (qv), a busy junior, took him on as a ‘devil’ to assist with conveyancing work, and Costello had acquired a sufficient practice to marry (1919) Ida O'Malley, the daughter of a medical practitioner from Galway and a teacher at the Dominican school at Eccles St. Several of her brothers had, like Costello's doctor brother, served in the Great War, one of whom was killed in action, while two died of wounds or illness contracted on active service.
In June 1921, one month before the truce that brought armed hostilities between the IRA and government forces to a halt, Costello was briefed by an Ennis solicitor with Hugh Kennedy, now a KC, and Patrick Lynch (qv), KC, to appear for John Egan, who had been sentenced to death by a military court for the possession of ammunition. At a hearing held shortly after the truce in July 1921 Charles O'Connor (qv), master of the rolls, defied precedent and decided that the military court lacked jurisdiction to try an offence punishable with death. The case created a sensation because the judge had to threaten to commit the commander-in-chief of the army in Ireland to prison to secure Egan's release. The judgment called in question the legality of other executions and was under appeal when the conclusion on 6 December 1921 of the treaty for the establishment of the Irish Free State intervened to make it irrelevant.
Although during his political life Costello praised the efforts of those who had achieved independence by the use of force, he never claimed that he had supported them or the Sinn Féin party; his attitude at the time may have been influenced by the views of the church authorities, who had consistently condemned the use of physical force. He did claim that he had appeared in the dáil courts set up under the aegis of the administration established by the Sinn Féin members returned in the 1918 general election. There is, however, no record that he was among the very few barristers who did so before the truce that brought armed hostilities to an end in July 1921. After that, most nationalist barristers appeared in these courts, even if they had never been Sinn Féin supporters, and Costello was among them.
Hugh Kennedy advised the Irish delegation who negotiated the treaty and was appointed law adviser to the provisional government, to whom the British authorities handed over the administration early in 1922. He appointed Costello as a part-time assistant, a post he continued to hold when John O'Byrne (qv) succeeded Kennedy as attorney general in June 1924. Costello researched assiduously and provided opinions on a wide range of complicated legal issues arising on the changeover between two administrations. He retained his private practice and was briefed as junior counsel on behalf of the widow of the Tammany boss Richard Croker (qv), when she successfully defended a bequest to her that was disputed by his family; she invited her counsel to a celebration dinner and made them gifts of 1,000 guineas (£1,050) apiece. This (and a bequest from his aunt Bridget Callaghan) enabled Costello to buy 20 Herbert Park, where his family of three boys and two girls grew up and which remained his home for the rest of his life. He also represented the state in litigation, and in 1924 was nominated as standing counsel to the Revenue. In May 1925 he was called to the inner bar.
Attorney general, 1926–32
In January 1926 Costello succeeded as attorney general when John O'Byrne was appointed a judge. ‘His industry, ability and energy are very great,’ reported the Irish Law Times; ‘He is a good lawyer and an excellent advocate.’ As attorney general he gave up private practice and did not appear in court even on behalf of the state, preferring to brief politically sympathetic barristers, such as Charles Bewley (qv), Cecil Lavery (qv), Basil McGuckin, and Thomas Finlay (1893–1932) to act for him. This set a precedent for future holders of the office.
It was a time when legal issues such as public safety legislation, the maritime boundary with Northern Ireland, payment of annuities due to the British government under the land purchase acts, and the legislative powers of the dominions were to the forefront in political debate, so adding to the routine work of an attorney general directing prosecutions – some of which, such as the prosecution of the Fianna Fáil deputy leader Seán T. O'Kelly (qv) for contempt of court, were also politically controversial. ‘Costello has done wonderful work’, noted his old mentor Hugh Kennedy in his diary (diary of Hugh Kennedy, 11 Dec. 1929; Kennedy papers, UCDA). Costello, who regarded himself as not politically aligned with any party, kept a low profile and abstained from public statements of any kind.
He was also engaged in an advisory role abroad at imperial conferences and at the League of Nations, where the Irish Free State was asserting the right to act independently of the British government. One aspect of this was acceptance, with no exception for disputes with other commonwealth countries, of the compulsory jurisdiction of the international court of justice. Costello was proud to have contributed to the negotiation of the Statute of Westminster, 1931, which recognised the full sovereignty of the dominions within the empire and made possible the later legal evolution of the Irish Free State to total independence.
In 1929 he secured the appointment, as a full-time assistant in the attorney general's office, of barrister Philip O'Donoghue (qv), who had been a district justice since 1922. The attorney general's office, with its full-time salaried assistants recruited from the bar, was to become an important part of the apparatus of government. If a high court judgeship had fallen vacant in these years, Costello would almost certainly have been given the option of following the two previous attorneys general on to the bench. Instead, he returned to the bar when the Cumann na nGaedheal government was defeated in the 1932 general election.
TD and barrister, 1933–48
In January 1933, the new president of the executive council, Éamon de Valera (qv), whose Fianna Fáil government had been dependent on Labour support, called a snap election at which Fianna Fáil won an overall majority. An opening existed in the eight-seater Dublin County constituency as a result of the unexpected early death in November 1932 of Cumann na nGaedheal deputy Thomas Finlay, SC. Costello was adopted in his place and came second after Henry Dockrell (qv) among four Cumann na nGaedheal deputies elected. From 1937 to 1948, with a break between the 1943 and 1944 general elections, Costello represented the three-seat Dublin Townships constituency, comprising the generally more affluent southside suburbs.
One of Costello's first interventions in the dáil was to defend Gen. Eoin O'Duffy (qv), with whom he had worked closely before the change of government and who was peremptorily dismissed as commissioner of the Garda Siochána in March 1933. Later that year O'Duffy became his political leader when Cumann na nGaedheal joined with the National Centre Party and O'Duffy's National Guard (the Blueshirts) to form the new Fine Gael or United Ireland party. Early in 1934 Costello acted for O'Duffy in the high court and in the supreme court, securing his release when an attempt was made to charge him before a military tribunal. On 28 February 1934, when opposing the Wearing of Uniforms Bill outlawing the wearing of the blue shirt, Costello told the dáil: ‘Just as the Blackshirts were victorious in Italy and the Hitlershirts were victorious in Germany, so the Blueshirts will be victorious in the Irish Free State’ (Dáil Éireann deb., l, col. 2238).
In 1936 Costello opposed in the dáil the bill to remove the king from the constitution, and the subsequent external relations bill, under which the new king was to retain certain external functions, such as providing the credentials of Irish ambassadors. Costello described the first bill as ‘a political monstrosity’ that left it uncertain whether the state was a republic or in the commonwealth. It dishonoured, he said, obligations ‘to those dominions which helped the representatives of the Irish people to achieve their freedom in the imperial conferences’ (Dáil Éireann deb., lxiv, col. 1293–9).
Initially, on his return to the bar, Costello seems to have had difficulty building up a substantial practice. Many of his early reported cases were challenges to the government of one kind or another and even involved him, as in The State (Ryan) v. Lennon, in questioning the constitutionality of legislation enacted while he was attorney general. In that case he formulated the argument adopted by Chief Justice Hugh Kennedy in his minority judgment in the supreme court that the principles of natural law could override the strict terms of the constitution. From the time Costello returned to the bar, Arthur Cox briefed him regularly to appear for such important clients as the Electricity Supply Board. In cases arising from industrial injuries in which he appeared, Costello was usually on the side of the workman rather than the insured employer; he was often briefed on behalf of trade unions. In 1935 he represented the Irish Transport and General Workers Union in a successful action to prevent a British union of the same name from using it here – in the course of the hearing he cross-examined Aneurin Bevan, Labour MP and later minister. In 1943 Costello succeeded in persuading the supreme court that the School Attendance Bill, 1942, limiting the right of parents to choose their children's school, infringed the rights of the family under the constitution. By this time his name was appearing more often in reported cases acting for a greater variety of clients, indicating that he was now in the front rank at the bar, second only to Cecil Lavery, whom he always insisted was the outstanding barrister of his time. Costello's large practice did not take him away from his family; such was his concentration that he was able to work at home on his briefs in the evening sitting in the midst of them. He made no secret of giving priority to his practice and the needs of his family over his political career. He was fortunate that he was able to survive politically without doing much constituency work.
At the general election called by de Valera in January 1948, his Fianna Fáil party lost seats to the newly formed radical republican Clann na Poblachta party led by Seán MacBride (qv) and so failed to secure an overall majority in the incoming dáil. Although the Fine Gael share of the vote fell to an all-time low (below 20 per cent) and it had less than half the number of seats required to form a government on its own, it remained the second largest party. Its leader, Gen. Richard Mulcahy (qv), initiated discussions with the smaller parties and some independents with a view to forming a government. Costello, who had topped the poll in his constituency, had told party colleagues that he had no intention of giving up his practice to be a minister or become attorney general again. But the Labour party leader William Norton (qv), who had admired Costello's work as counsel for injured workmen and for trade unions, was insistent that Costello should be taoiseach in the proposed inter-party government. MacBride, who had been apprehensive about the readiness of republicans to serve under the civil-war army chief Mulcahy, then agreed to Costello, his fellow SC (although his preference was for Sir John Esmonde (qv), SC, who had defended republican prisoners), so helping to create a myth that the whole thing was a Law Library conspiracy. Mulcahy agreed readily, and a reluctant Costello was persuaded by close friends such as Arthur Cox that he had no alternative but to accept the office, to which he was appointed on 18 February 1948.
Costello's government began well, with the negotiation in June 1948 of a trade agreement with the British government, improving access for Irish agricultural exports. The warm relations then established were consolidated when prime minister Clement Attlee took his summer break in the west of Ireland. However, they did not outlast the declaration by Costello, while on a visit to Canada in September, that it was intended to repeal the External Relations Act, 1936, under which the king signed the credentials of Irish ambassadors, and which was the last remaining formal link with the commonwealth. Costello's statement was made in response to a press leak in the Sunday Independent and without prior consultation with the British government. There seems to have been no formal government decision authorising the action, although most ministers favoured it and ratified it readily on Costello's return. Costello himself had criticised the ambiguity created by the external relations act when it was enacted, and took the view that membership of the commonwealth had effectively ceased already. This may be the reason why he did not explore the feasibility of retaining commonwealth membership as a republic, an arrangement adopted about this time for India.
The legislation repealing the external relations act stated that the description of the state was the Republic of Ireland, and the government celebrated its coming into force on Easter Monday 1949 as an acknowledgement that the state established under the 1937 constitution was a republic – the word ‘republic’ had been studiously omitted from the constitution itself. To emphasise that it was done with the full support of Fine Gael and not just to satisfy Seán MacBride's Clann na Poblachta party, Costello piloted the Republic of Ireland bill through the oireachtas. He told the dáil that the removal of the last formal link with the British crown would end a provocation to republicans and so take the gun out of Irish politics. Privately, he hoped that it would ensure that Fine Gael was no longer branded as the pro-British party, and would fare better in a context where politics focused mainly on bread-and-butter issues.
The declaration of the republic alienated those who had taken at face value the commitment of the Fine Gael party leader, Mulcahy, to remain in the commonwealth. This alienation was most marked among the former unionist, largely protestant, community, and was compounded when Costello referred to the ‘so-called reformation’ at a meeting in TCD and apologised to the Irish people in the dáil for describing the Irish Times as an Irish newspaper. What happened also alienated the British government, largely because it was done without prior consultation with them. Although they were eventually persuaded to continue existing trade, nationality, and immigration arrangements and not treat the Republic as a foreign country, they responded by enacting, without prior consultation with the Irish government, the Ireland Act, 1949, under which it was declared that Northern Ireland would not cease to be part of the UK without the approval of its parliament. That, in turn, sparked off an all-party anti-partition campaign. On 10 May, moving a motion in the dáil condemning the proposed Ireland Act, Costello remarked with the kind of rhetorical flourish in which he rejoiced: ‘we can hit the British government in their prestige and in their pride and in their pocket’ (Dáil Éireann deb., cxv, col. 807).
Thereafter, responding to advice from his son-in-law Alexis FitzGerald (qv) that he should not upset the traditional constituency of the Fine Gael party and should speak only from a prepared script, he toned down his own utterances on partition and allowed Seán MacBride to make the running on the issue. Agreements were reached with the government of Northern Ireland for joint action in relation to Lough Foyle, the Erne fisheries, and the Dublin–Belfast railway. Commenting on these at a Fine Gael ard-fheis in February 1951, Costello said that they had ‘given some grounds for the belief that friendly relations can do much to achieve eventual unity more certainly than threats of bloody warfare’ (Ir. Times, 7 Feb. 1951).
On the domestic front the country prospered. Agriculture revived, houses were built, social welfare improved, and hospital services, especially those for TB patients, were improved. In a broadcast at the end of 1949 Costello announced: ‘Ireland is now entering the most prosperous period in her history’ (Ireland's economy, Radio Éireann talks on Ireland's part in the Marshall plan (1949), 2; quoted in Kennedy, Dreams & responsibilities, 65). The prosperity was fuelled by a decision emanating from Costello and his personal economic adviser, Patrick Lynch (qv), to introduce a capital budget, so ensuring that the accepted practice of having a balanced budget did not prevent borrowing for capital purposes. Costello complained to the minister for finance that memoranda from his department opposing this change created an atmosphere of gloom scarcely justified by the facts. The establishment of the Industrial Development Authority to encourage industrial investment and of Córas Tráchtála to promote exports were the first moves away from the economic policies of self-sufficiency that had held sway since 1932.
By his supportive attitude, Costello won the confidence of ministers from other parties as well as his own and was content not to interfere with them. The collegiate nature of the government, which accorded with the views Costello had expressed in the debates on the constitution in 1937, was one cause of the long and meandering cabinet meetings of these years. While some ministers showed little sense of collective responsibility when disagreeing publicly with colleagues in government, Costello won credit for the very fact that he had confounded expectations by holding together such a diverse crew. Personal loyalty to him was a big factor in this. Those close to him recognised that beneath a veneer of gruffness and despite a quick temper he was an exceptionally compassionate, generous, and loyal man. James Everett (qv), a Labour party minister whom he had supported in 1950 through an embarrassing confrontation arising from the appointment of a political crony as postmaster of Baltinglass, described him as a saint.
Costello's reluctance to interfere with ministers, together with a laxity of cabinet procedures already manifested in connection with the repeal of the external relations act, contributed to a crisis about a scheme for free maternity services promoted by the Clann na Poblachta minister for health Noel Browne (qv), who had been one of the most acclaimed members of the government. In 1950 a proposal that the ‘mother and child’ scheme should not be means-tested was opposed publicly by the medical profession, while the spokesman of the catholic hierarchy, Archbishop John Charles McQuaid (qv), voiced objections privately to Costello. The position was delicate because Browne was a member of another party whose defection would prove fatal to the government. Costello had established a good relationship with Browne, whom he supported through an earlier difficulty in the dáil. He now tried to act as an intermediary with the doctors, assuring them that there would be no question of a state-financed health service replacing private practice, if they would accept a ‘mother and child’ scheme that was not means-tested. Browne took exception to such discussions taking place behind his back and accused Costello of treachery. Unknown to Browne, Costello kept in contact with Archbishop McQuaid, to whom he was personally close, meanwhile urging Browne to resolve differences with the hierarchy. In March 1951, apparently under the impression that he had resolved outstanding differences with the archbishop, and having broken off negotiations with the medical profession, Browne moved to bring a non-means-tested scheme into effect, relying on an unrevoked government decision of 1948 accepting this. He had not notified Costello in advance. On receipt of renewed representations from the hierarchy, stating that a non-means-tested scheme would be contrary to catholic teaching, Costello called a meeting of the government at which all the ministers except Browne agreed that, in compliance with the wishes of the hierarchy, the scheme would be means-tested. Browne indicated that he would have to consider what he would do. Some days later, he issued a bulletin announcing that he was pursuing a compromise based on an insurance contribution put forward by the executive of the ITUC. At this point he was directed to resign by his party leader, Seán MacBride, with whom he was in more general contention. Browne complied and then released the correspondence with the hierarchy and with Costello to the Irish Times. In the subsequent debate in the dáil, Costello took exception to Browne's issuing his bulletin without consultation with his cabinet colleagues, and said that he would have asked for Browne's resignation if MacBride had not done so. Costello defended the stance taken by the government on the basis that he and his colleagues felt bound to accept the teaching of the bishops in matters of faith and morals. It was an attitude to be expected of a genuinely pious catholic (and Knight of Columbanus) who, on taking office, had led the government in sending a message to the pope, reposing themselves at his feet. But it needs to be set in the context that Costello's stance in relation to the intervention of the hierarchy evoked no dissent from other political leaders, and Browne himself stated that as a catholic he, too, felt bound by the ruling of the bishops. In his resignation speech Costello was faulted by Browne only for failing to convey his views to the bishops and to keep him informed of the reaction of the bishops and of his ministerial colleagues – charges that Costello refuted quite convincingly.
Costello did not ask MacBride to nominate another minister in Browne's place but insisted on taking over as minister for health himself. He blamed the civil servants there for fomenting the confrontation that had led to Browne's resignation, and threatened stern action against some of them. Distrustful of a departmental bias against the medical profession and in favour of socialised medicine, he insisted that the medical staff, who had been rather sidelined, should take over responsibility for negotiating with their fellow doctors to resolve the differences that had occurred. A professional man himself, Costello had an instinctive fellow-feeling for the medical profession and its desire to preserve its independence from state control. In the debate following Browne's resignation he had paid tribute to the role of the profession in the whole negotiation when they had opposed the absence of a means test. That he had ever gone along with Browne's proposals and, at one point, personally downfaced the doctors on Browne's behalf, is testimony to how he saw his role in government as being a chairman rather than a chief.
The government's majority in the dáil was now under pressure. In September 1950 Sir John Esmonde left Fine Gael, remarking that it was unacceptably dominated by those who had come from Cumann na nGaedheal to the exclusion of those, like himself, who had come from the Centre Party; he may have felt aggrieved that Costello personally had passed him over to succeed Senator Cecil Lavery as attorney general in favour of Charles Casey (qv), SC, who was not a member of the oireachtas. In April 1951 Esmonde resigned from the dáil. With the split in Clann na Poblachta and the withdrawal of support by several independents anxious to take popular stands in advance of a general election that could not be long delayed, the government found itself facing defeat in the dáil on the agricultural estimates. In early May, before the actual vote could be taken, Costello called an election.
One of the last acts passed before the dissolution of the oireachtas established an Arts Council, so realising what Costello described as ‘a personal ambition going back many years’ (Seanad Éireann deb., xxxix, col. 1074 (2 May 1951)); he had long been an assiduous collector of paintings by Irish artists. This, and golf, whether it was his regular Sunday fourball at Portmarnock Golf Club (of which he was captain in 1947) or an occasional round at Milltown Golf Club, were his only interests outside politics and the law.
Leader of the opposition, 1951–54
The 1951 general election was the first in the history of the state not fought primarily on the national issue, which pleased Costello and seemed to him to vindicate his decision to sever the former link with the commonwealth. The Fine Gael share of the national vote increased from under 20 per cent to almost 26 per cent, although in Dublin South-East, Costello's constituency, while he personally topped the poll, the party's share of the vote fell and Noel Browne came in a close second. While nationally Clann na Poblachta's vote collapsed and Labour lost ground, Fianna Fáil were well short of an overall majority, and it looked at first as if Costello would be able to continue in office. In the event, he was defeated by only two votes even after the ceann chomhairle had resigned to vote with Fianna Fáil against him. With the support of Noel Browne and other defectors from Clann na Poblachta, Éamon de Valera became taoiseach once more.
Costello's reputation was, if anything, enhanced by the outcome of the general election. He became leader of the opposition, making him the effective leader of Fine Gael, although Mulcahy retained his position as head of the party outside the oireachtas. Costello, who had returned to full-time practice at the bar, was not all that active in opposition, but this mattered less because de Valera, too, was often absent. As it turned out, the country incurred its largest ever balance-of-payments deficit in 1951, and in early 1952 the Fianna Fáil minister for finance was compelled to bring in a harsh budget. The government lost popularity so completely that Costello soon assumed the standing of taoiseach-in-waiting.
In these circumstances, the offer to him by de Valera of a supreme court judgeship in 1953 had the appearance of a political manoeuvre and was rejected out of hand. In that year Costello was retained by Arthur Cox to act for Winston Churchill in a libel action arising out of his war memoirs, taken by Brig. Eric Dorman-Smith (qv) (now Dorman O'Gowan) who had been dismissed by Churchill during the desert war. Hartley Shawcross, who was advising Churchill, wrote to him on 26 October 1953: ‘Costello is said to occupy easily the leading position at the Irish bar and he impressed me as being undoubtedly a fighter’ (Churchill archive, Churchill College, Cambridge). However, Costello did not have to fight, as Dorman O'Gowan settled rather weakly for the insertion in future editions of a footnote exculpating himself. A case that did come to hearing in the following year was a libel action taken by Patrick Kavanagh (qv), the writer, against the Leader magazine, arising out of an anonymous profile of him. Costello was briefed for the Leader. With characteristic thoroughness, he had read all Kavanagh's works and used these to harry him terrier-like for several days in cross-examination, breaking down his credibility and establishing that he had written things about others that were just as wounding as that which the Leader had written about him. The jury found that Kavanagh had not been libelled, and his action was dismissed. Kavanagh was so impressed by Costello's knowledge of his work that he approached Costello, who assisted him to obtain funding from the Arts Council and an extra-mural lecturership in poetry at UCD. The verdict itself was overturned in the supreme court, which ordered a retrial that, in the event, never took place.
By the time the case went to appeal, Costello was taoiseach once more, following a general election in May 1954 where the Fine Gael share of the national poll rose to 32 per cent, its highest since 1938. Costello polled so well in Dublin South-East that another Fine Gael deputy, John O'Donovan (qv), was elected on his surplus, so unseating Noel Browne, who had joined Fianna Fáil. This time Costello was in command of the distribution of portfolios among his own party and appointed some able ministers from a younger generation, notably Gerard Sweetman (qv), Liam Cosgrave, and T. F. (Tom) O'Higgins (1916–2003). Clann na Poblachta did not join Costello's second coalition – MacBride declined his offer of External Affairs – and Costello was more assertive as head of government in directing his ministers than he had been in his first term.
The government held its own for the first year. As minister for health, Tom O'Higgins defused the long-running dispute with the doctors over extended free health services by agreeing that the ‘mother and child’ scheme would be means-tested, and promising a state-sponsored insurance scheme that would ensure that middle-income patients would be able to pay for private health care. Useful measures of law reform, a pet project of Costello, were introduced. The scope for bold innovations was, however, limited because the public finances were less healthy than when Costello was last taoiseach.
In 1955 Ireland was admitted to the UN. Costello made it clear that the Irish stance there would be pro-western and anti-communist. It was in character that he was receptive to representations from Archbishop McQuaid about a visit of the Yugoslav soccer team in October 1955, and the government advised President O'Kelly not to attend. However, Costello faced down the hierarchy in private when they sought to have TCD excluded from participation in a proposed agricultural institute. In the following year, he disregarded McQuaid's views in appointing Sean O'Faolain (qv) director of the Arts Council. ‘While I cannot expect your grace's blessing’, Costello wrote in a letter informing the archbishop, ‘I feel sure that I will have your prayers’ (20 Dec. 1956; Dublin diocesan archives).
As 1955 drew to a close, it was clear that the economic situation was deteriorating gravely. There was a record balance-of-payments deficit for the year, depleting the banks of much of their sterling assets. As a result the minister for finance, Gerard Sweetman, was compelled to cut expenditure and raise taxes in the 1956 budget and also to impose import levies. Unemployment and emigration soared as national morale reached an all-time low.
In April 1956 Costello suffered a severe personal blow when his wife died quite suddenly. He battled on. In September, sensing serious unrest among Labour supporters, he overruled Sweetman and supported a programme for recovery drafted by Tom O'Higgins, which envisaged export-led expansion to be achieved by shifting public investment to productive purposes and by measures such as export tax relief. It was received enthusiastically by deputies of all parties supporting the government, including Clann na Poblachta.
Meanwhile, the renewal of IRA violence on the border disappointed Costello's expectation that he had taken the gun out of Irish politics. While reiterating his views on the injustice of partition, he was vocal in condemning the IRA. But he ruled out extradition of IRA men for trial in Northern Ireland and turned down private requests from the British government for exchanges of information between the gardaí and the RUC. While some prosecutions were taken in the ordinary courts, Costello had no real stomach for more drastic solutions such as military courts or internment, which would probably cost him the support of Clann na Poblachta and might be opposed by Fianna Fáil, so bringing the national issue centre-stage in politics once more. On 3 December 1956 he wrote to Thomas Bodkin (qv), whom he had just failed to entice back from England to head the Arts Council before offering the post to Sean O'Faolain: ‘I have had so many frustrating disappointments that one more does not make any difference’ (Bodkin papers, TCD).
Worse was to follow. In the first day of 1957 two IRA men were killed in a border raid and huge crowds turned out to mourn them. The national executive of Clann na Poblachta was unwilling to be identified with a government imprisoning republicans, even as a result of ordinary criminal prosecutions. At the end of January 1957 it directed the party leader, Seán MacBride, to withdraw the support hitherto pledged to the government and to put down in the dáil a motion of no confidence. This action, which took Costello by surprise, eroded the government's majority but did not put it in a minority. Yet he called a general election, disregarding in so doing the advice of such ministers as James Dillon (qv) and Tom O'Higgins, who wanted to contest the vote when the dáil reassembled, rather than appear to be fleeing from office.
In opposition, 1957–69
At the general election, held on 5 March 1957, Fianna Fail won a record overall majority. Fine Gael suffered heavy losses but, making allowances for independents such as James Dillon who had joined the party in the intervening years, their share of the national vote at 27 per cent had not fallen below its 1951 level. In Dublin South-East, Costello still topped the poll but with insufficient votes to bring in the other Fine Gael candidate, who lost his seat to Noel Browne standing as an independent.
In the new dáil Fine Gael were languid in opposition, reflecting low morale in the wake of their crushing defeat and the adoption by Fianna Fail of policies close to what the inter-party government had advocated towards the end of its term. The only issue on which Costello succeeded in working up a real head of steam was in opposition to the action of Frank Aiken (qv), the minister for external affairs, breaking ranks with the US to vote for the discussion of the admission of Communist China to the United Nations. Costello attended the dáil only spasmodically. This led to dissatisfaction being voiced privately by some party colleagues. It was not quietened by a successful campaign in 1959 to defeat in a referendum a Fianna Fáil proposal to abolish proportional representation. At the end of 1959, when Gen. Mulcahy announced that he would retire as leader of the party, there was no longer any need to have different leaders for the party and the parliamentary party. It became clear that most of the parliamentary party did not favour Costello's going on unless he was prepared to serve full-time and so be able to take on the new taoiseach, Seán Lemass (qv), who was more active in the dáil than de Valera had been. It came to Costello as what he described as ‘a hurtful shock’. He decided to stand down rather than split the party. ‘I tried’, he wrote to a priest friend, ‘not always with success, to take it as God meant it to be taken by me’ (Costello to Dr Patrick O'Carroll, 28 January 1960; Costello papers, UCDA). But it created a slight coolness between him and the new leader, James Dillon, that persisted for some time.
In the succeeding years Costello continued to decry within the party those who were prepared to wait for Fine Gael to overtake Fianna Fáil, and supported those (now led by his son Declan) who advocated policies that would make Fine Gael a natural ally for Labour once more. When, on finding his policies rejected by the front bench of the party, Declan Costello was minded to join the Labour party, his father persuaded him first to put the matter before the Fine Gael parliamentary party. This led to the adoption by the party of the ‘just society’ document in advance of the 1965 general election. However, the Labour party was not to be wooed into any kind of alliance, and fewer votes transferred between it and Fine Gael. Although Fine Gael increased its share of the national vote, it won no extra seats. Fianna Fáil gained two seats, so making its government secure. One of these gains was in Dublin South-East where, although Costello topped the poll, the Fine Gael share of the vote was reduced and the second Fianna Fáil candidate was able to unseat Noel Browne.
On the back benches, Costello felt free to depart from the party line on occasion, most famously when he dissented somewhat from their opposition to a provision in the Succession Bill, 1964, giving a surviving spouse an automatic right to a third (a half when there were no children) of the estate of the deceased. But his high standing within the party, as the person who had revived it when it faced terminal decline, was unaffected. It was, therefore, natural that in 1966 his name should have been canvassed as a possible Fine Gael candidate at the presidential election to oppose Éamon de Valera who, at the age of 83, was seeking a second term. However, at a meeting of the front bench of the parliamentary party, a proposal that Costello should stand was quickly withdrawn when Gerard Sweetman asked how, in the fiftieth anniversary of Easter week, could the party oppose the oldest surviving officer of the rising with a man who had been old enough in 1916 to have fought in the rising, and had not.
Costello continued to contribute usefully to dáil debates right up to the 1969 general election, when he stood down in Dublin South-East in favour of Garret FitzGerald (qv). On 29 April 1969, criticising a rather illiberal criminal justice bill, he told the dáil that ‘the greatest safeguard of citizens’ liberties is this house, not the courts’ (Dáil Éireann deb., ccxl, col. 80). It was his final speech in the chamber, over thirty-six years after he had been first elected.
Unlike William T. Cosgrave (qv), Costello had not seen the country through a major crisis; unlike Éamon de Valera and Seán Lemass, he had not led the country in a new and distinctive direction. His major initiative, the declaration of the republic and the withdrawal from the commonwealth, turned out to make little difference in practice. His major legacy, apart from some tentative initiatives away from misguided policies of economic self-sufficiency, was to revive his own party by moderating its conservative and less nationalist image, so ensuring that there was an alternative government to Fianna Fáil and that it was led by Fine Gael. New life was breathed into Irish democracy, the excesses of unbroken one-party government were curtailed, and (for better or for worse) a left–right or urban–rural polarisation of Irish politics did not develop.
After he had ceased to be taoiseach in 1957 Costello devoted himself wholeheartedly to his legal practice. In 1961, appearing for once on the employer's side, he persuaded the supreme court to make the controversial ruling that the right to form associations in the constitution meant that employees could not be coerced by fellow employees into joining a trade union; accordingly picketing was prohibited where it was in furtherance of a strike that had occurred because some employees refused to join a particular union.
At the bar ‘Jack’ Costello, as he was known, was an immense and well-loved figure. He was busy through his seventies into his eighties, a sturdy purposeful man bustling around the Law Library in the Four Courts or poring intently over papers on his desk, flicking his propelling pencil in the air as he read. ‘Bags of commonsense’ was the quality he most prized in himself and any other barrister. Thorough if not ingenious, he threw himself into a case with immense zest, apparently utterly unable to conceive that his client might be in the wrong. His colleagues recognised in him the supreme all-round craftsman of the profession. He was equally at home haranguing a jury or cross-examining a recalcitrant witness, as unwinding a difficult set of facts or arguing a complex legal point. The latter he tended to do with an informality almost amounting to irreverence that belied the erudition and complexities involved. His experience as assistant to the attorney general, and then as attorney general, had left him with a wider knowledge of the law than most practitioners. He did not hesitate to tell judges that he knew what a statute meant because he had been responsible for drafting it. Costello's downrightness was legendary; asked to comment by Mr Justice Brian Walsh (qv) in the supreme court on the bearing of one of Walsh's seminal judgments on his argument in a case, Costello remarked: ‘the longer I remain in the profession, the more I realise that nothing is certain, especially in this court’ (communicated to the present writer by a barrister who was present). In the closely knit, not uncritical community of the Irish bar his qualities of kindness, compassion, and accessibility, as well as his transparent honesty and total lack of self-importance or hauteur, were universally recognised. ‘You finally destroyed the myth’, a younger colleague wrote to him, ‘that great men must be aloof and unapproachable’ (T. A. Finlay, SC, to Costello, May 1969; Costello papers, UCDA). In his latter days he had the aura of a survivor from a bygone, golden age. Every honour was paid to him. Although he had achieved the highest political office and insisted that politics was his first love, it seemed to legal colleagues, and perhaps also to others, that he had always been first and foremost a barrister.
The contentment of Costello's later life was marred only by the death (1971) of his daughter Grace, who had qualified as a barrister and was married to solicitor Alexis FitzGerald, to whom, as to his other son-in-law, barrister Ralph Sutton (1924–99), Costello was very close. He had nineteen grandchildren, to whom he never failed to send a gift for their birthdays.
Costello received honorary doctorates from several universities in North America during his visits there as taoiseach but not from any Irish university; there had been some disappointment in UCD that, in office, he had not done more to assist them. In 1962 he was awarded the Grand Cross of the Pian order by Pope John XXIII. In company with Éamon de Valera, Costello was granted the freedom of the city of Dublin in 1975. When de Valera died in August 1975, Costello delivered himself of a frank assessment which, while not generally debunking, contained the statement that de Valera had left behind nothing of permanent value, a remark that gave offence. This was symptomatic of a compulsive directness rather than any malice, for, unlike many of his Fine Gael colleagues, Costello felt little or no personal hostility towards de Valera and was deeply appreciative of the courtesy and kindness de Valera had shown towards him at the time of his wife's death.
Costello was diagnosed with cancer soon afterwards. Although stricken, he attended the opening of the legal year in October 1975 but did not return to the Law Library. After a few months illness he died at home on 5 January 1976. A state funeral was declined by his family, indicating their view that he was essentially a private man who had played a public role, when called on to do so, rather than a public figure. He was buried in Deansgrange cemetery after requiem mass at his parish church in Donnybrook. He was survived by three sons and one daughter. A portrait of Costello (1948) by Leo Whelan (qv), to which the bar subscribed when Costello became taoiseach, hangs in King's Inns, Dublin. There is a charcoal (1949) by Seán O'Sullivan (qv) in the NGI, and a pencil drawing (1949) by the same artist hangs with portraits of other taoisigh in Leinster House.