Costello, (David) Declan (1926–2011), politician, attorney general and judge, was born on 1 August 1926 in the family home at Herbert Park, Ballsbridge, Dublin, the second of five children of John Aloysius Costello (qv) and his wife Ida (née O'Malley). His father was Ireland's attorney general (1926–32) and later a leading barrister and Fine Gael taoiseach (1948–51; 1954–7). Enjoying sports, Declan competed in underage showjumping contests, boasted a single figure golf handicap in his early 20s, and played tennis well into middle age at the Fitzwilliam Lawn Tennis Club.
Early life; St Michael's House
He was an excellent scholar and, after attending the Sacred Heart convent school, Leeson Street, Dublin, and St Xavier's School, Donnybrook, Dublin, studied law and economics in UCD from 1943, also entering King's Inns in 1944 with a Swift–McNeill scholarship. He expounded his liberal views in winning prestigious UCD debating medals in the Law Society and the Literary and Historical Society. His studies were interrupted in 1946 when he contracted tuberculosis of the kidney, a rare disease, and spent ten months in a Swiss clinic. He survived thanks to his family's wealth and the development of new drugs, but lost a kidney and suffered from delicate health thereafter, giving his boyish features an ascetic cast. Following a relapse in late 1947, he was convalescing in Switzerland when his father became taoiseach in February 1948.
That year, Declan received a first-class honours BA in economics and was called to the bar, practising on the Dublin circuit. Active in Fine Gael since college, he was returned as a party candidate in the 1951 general election for Dublin North-West, being radicalised by the primitive housing conditions within his constituency. He held his seat there in four subsequent contests, representing the constituency for eighteen years (1951–69). In 1953 he married Joan Fitzsimons, the daughter of a surgeon from Merrion Square, Dublin. Settling in Donnybrook, they had four sons and two daughters. The burden of caring for one of his sons, who was autistic, precluded the socialising normally attendant on a career in law and politics.
In 1955 Costello helped found the Association of Parents and Friends of Mentally Handicapped Children (latterly St Michael's House) and assisted fund-raising for a day care centre opened in 1956 to educate intellectually disabled children. His lobbying bore fruit in 1960 when the centre was officially recognised as a school. He was an active president of St Michael's House from 1956 until his death, by which time the association was providing services to 1,600 children and adults across 170 centres in the Dublin region.
Part dauphin, part Robespierre
Upon entering the dáil, Costello contradicted the verbal belligerence of his father's 1948–51 government in calling for the pursuit of Irish unity through economic cooperation. He also advocated the forced repatriation of bank capital for social investment, arguing that the weak private sector needed state direction. Party colleagues tolerated these heresies because of his merit and family pedigree. Although far more conservative, John A. Costello was a proud and supportive father, and agreed with Declan that Fine Gael needed to broaden its appeal.
A devotee of the philosopher Jacques Maritain, who believed human rights existed to serve the common good rather than individual autonomy, Declan exemplified a liberal catholic intellectualism that flourished abroad while withering in Ireland. He contributed to Irish and British religious and current affairs publications, and put his fluent French to use as a member of the Irish delegation at the consultative assembly of the Council of Europe (1954, 1956–9). His formal, scrupulously polite manner radiated hauteur, but hid a shy and compassionate spirit. He relaxed by gardening, playing the piano and reading voraciously.
To avoid charges of nepotism, he was not included in the cabinet when John A. Costello formed his second government in 1954. The most radical – and therefore least influential – of his father's circle of Keynesian advisers, he encouraged the government's decision to set Irish interest rates below British levels in 1955. During the ensuing balance of payments crisis, his vociferous, though non-public, opposition to the catastrophic austerity measures that were imposed enraged the finance minister, Gerard Sweetman (qv), who in his subsequent capacity as Fine Gael's director of national organisation emerged as Costello's foremost adversary.
Appointed Fine Gael's external affairs spokesman after the coalition's drubbing in the 1957 general election, Costello asserted his liberal anti-communism and championed European integration. He also unsuccessfully urged Fine Gael to move leftwards for the purposes of shedding its moneyed image and facilitating coalitions with the Labour party. In the late 1950s he and other party progressives launched a political monthly and a Fine Gael research and study group, but found their colleagues averse to detailed policy-making and the public airing of internal differences. His father's ousting as parliamentary party leader in 1959 doomed both ventures, and he lost interest in politics, as Fine Gael drifted in opposition under the old-fashioned leadership of James Dillon (qv).
The just society
After his attempts to reopen policy discussions in 1963 were suppressed, Costello breached protocol in April 1964 by circulating to all the parliamentary party eight principles for thoroughgoing economic planning. Anticipating rejection, and with that the excuse that he wanted to quit, he declined initially either to canvass his views or seek press publicity. His initiative nonetheless attracted enthusiastic support, first from backbenchers demoralised by Fine Gael's failure to distinguish itself from Fianna Fáil, and then, crucially, from journalists desperate for a meaningful debate.
Following fraught discussions wherein Costello argued his case implacably, the front bench yielded in late May rather than suffer defeat, and the struggle devolved on the committee responsible for fleshing out his proposals. He dominated its deliberations, being the only member familiar with, or interested in, the issues. His opponents' delaying tactics backfired when the Fianna Fáil government suddenly called a general election in March 1965, leaving Fine Gael with nothing to hand except Costello's policy document, which was hastily completed amid further wrangling as a 30,000-word manifesto entitled Towards a just society.
An impressive achievement for an opposition deputy aided by a handful of experts, the Just society document broke new ground for a mainstream party, by coherently making the case for promoting equality of opportunity through state intervention. It called for private-sector production targets, controls on incomes and bank credit, equal pay for women, reform of the industrial schools, less reliance on indirect taxes, near universal free health care with a choice of doctor, and an educational system permitting progress to university regardless of wealth. Too long and technical for campaign purposes, the document was not widely disseminated and lacked credibility, given Fine Gael's history and the countervailing statements made by assorted party grandees. The party made only minor electoral gains, while Labour took fright and guaranteed Fianna Fáil's victory by moving further left and ruling out coalition.
Yet, by highlighting the paltry spending on social services, the 'just society' initiative forced Fianna Fáil to promise more funding for housing, health and welfare, overturning a consensus based on low taxes and minimal social investment. Contrasting with the transparent cynicism of the new-style Fianna Fáil politician, Costello's high-mindedness and aura of aloof rectitude appealed to a young, well-educated segment of the electorate dispirited by the prevailing mantra of economic expediency. He spoke in a solemn, refined and understated manner, captivating listeners with his forensic, clearly elucidated arguments. Foreign journalists flocked to interview him, as he addressed large crowds, topped the poll in his constituency with an increased vote, and drew an influx of youthful idealists into Fine Gael, which both invigorated and unsettled the party.
Retirement and return
He coveted the Fine Gael leadership, but was too passive, being incapable of the back-slapping and arm-twisting, the equivocations and compromises so required. Dillon and Sweetman outmanoeuvred him by moving immediately after the election to crown a centrist alternative, Liam Cosgrave (1920–2017), as party leader. Handed the health and social welfare brief, Costello had wanted finance, and grew disillusioned with Cosgrave's half-hearted espousal of a 'just society' programme that had been imposed on a largely uneasy and uncomprehending membership.
A period of febrile politicking and policy-making had undermined Costello's health, and he struggled to balance law and politics, especially after being called to the inner bar in 1965. The leadership of Fine Gael's liberals fell to Garret FitzGerald (qv), whom Costello had persuaded to enter politics in 1965, and who was more interested in pluralism than economic radicalism. In February 1967 Costello announced that he would not run for the dáil again and concentrated on his thriving legal practice, which specialised in trademark disputes and defamation. During 1968–9, he argued successfully against Sean Bourke's extradition to Britain for abetting the escape from prison of the Soviet spy George Blake. He also routinely represented some of Ireland's most ruthless capitalists.
He nurtured political ambitions even after leaving the dáil in 1969, and hosted covert gatherings wherein Fine Gael liberals and sympathetic Labour politicians discussed Fine Gael–Labour coalitions, Cosgrave's overthrow, and the formation of a breakaway party. As the prospects for a coalition brightened in November 1970, Costello declared his intention to stand in the next election. Despite his ongoing tensions with Cosgrave, Costello's progressive rhetoric sealed the Fine Gael–Labour alliance that defeated Fianna Fáil in the 1973 general election. He was returned for Dublin South-West, where Fine Gael's weakness obliged him to engage in far more constituency work than before.
Cosgrave denied a dismayed Costello full ministerial status by offering him the attorney generalship on condition that he cease practising law. Costello accepted, notwithstanding a significant loss of income. Impressing the cabinet with his legal counsel, he spoke rarely in the dáil, per established practice, and concentrated on running his small office, then overburdened by the need to advise other government departments on EEC law. He pursued reforming initiatives in cabinet, where he wielded outsized influence for an attorney general and was closest to FitzGerald and the Labour party minister for industry and commerce, Justin Keating (qv).
While continuing temporarily the practice of reserving state briefs for barristers with appropriate party connections, he refused to countenance representations from coalition politicians for dropping minor criminal charges against their constituents, and advocated the transfer of his office's responsibility for prosecutions to an independent civil servant. In 1975 he established the Office of the Director of Public Prosecutions (DPP), which substantially depoliticised the state's prosecutorial function and apportioned briefs for criminal cases without regard for party affiliation.
He pushed, largely unsuccessfully, for updating family law, mainly because of its inhumane treatment of deserted wives, unmarried mothers, and children born outside marriage, but also to preclude more liberal changes. Likewise, he was the main promoter of a bill permitting married couples to buy contraceptives while otherwise tightening restrictions; it was defeated in the dáil by conservative opposition in 1974. His veiled conservatism on moral issues was further borne out in 1976, when he published a discussion paper advocating looser marriage nullity laws as an alternative to divorce.
Finding most of his proposals frustrated by a mixture of bureaucratic torpor and resistance from vested interests, he looked to the future in 1975 by founding the Law Reform Commission (LRC), as a means of overhauling Ireland's outdated legislative corpus. Although the LRC long suffered from a lack of resources and political indifference, he facilitated the eventual flourishing of law reform by giving it an institutional platform. The creation of the DPP and LRC marked him as the most consequential attorney general in the state's history.
Deriving from his involvement in relief efforts for northern catholics during 1969–70, Costello's links with SDLP leaders such as John Hume enabled him to influence the government's Northern Ireland policy. A central participant in the December 1973 Northern Ireland power-sharing negotiations at Sunningdale, he took his cue from Hume in persuading his colleagues to push successfully for strong all-Ireland institutions, which, however, alienated unionists. Moreover, when the agreement was legally challenged as unconstitutional, Costello's successful, but unduly aggressive defence contributed to the Sunningdale executive's demise by contradicting the Irish government's acknowledgement of the people of Northern Ireland's right to self-determination.
The most vocal proponent of the government's politically motivated policy of declining to extradite IRA fugitives, he deflected British demands by disingenuously citing the Irish judiciary's uncooperative attitude. This stance owed much to his experience from 1973 of leading Ireland's case in the European Commission of Human Rights against the UK for interning and torturing nationalists in Northern Ireland. Convinced that the need to establish a precedent in international law outweighed diplomatic considerations, he brushed aside the concerns of cabinet colleagues and enraged the British government and the right-wing British press by skilfully pursuing this action to the European Court of Human Rights, where he forced an admission that sensory deprivation techniques had been employed. In 1977 the court ruled that the prisoners had been subjected to inhumane and degrading treatment before incongruously clearing the UK of torture.
High court judge
Although the coalition expanded social investment and the tax net, the 1974 oil crisis curtailed these initiatives, while the activities of republican paramilitaries pushed the government in an authoritarian direction. Costello's attendant dejection was compounded when a Dublin South-West by-election (1976) revealed that his seat was in jeopardy. Preferring rarefied legal argumentation to navigating the clashing personalities and interest groups of mass politics, he announced in autumn 1976 that he would not seek re-election, and was made a judge of the high court by Cosgrave in May 1977.
A stern, meticulous and industrious judge, he handled a vast range of cases and excelled in the chancery division, where he pioneered the use of sophisticated asset-freezing orders and search warrants. He would often decide early in proceedings that one side was in the right and point the relevant barrister towards a suitable legal argument. Regularly appearing in the law reports, his judgments typically disdained precedent, made creative use of technicalities, and were rendered all but appeal proof by combining close reasoning with clear findings of fact; those on intellectual property cases were cited internationally.
Having gained expertise in maritime law from representing Ireland at the international Law of the Sea conferences of the mid 1970s, he was appointed head of the tribunal established to investigate an oil tanker explosion that claimed fifty lives at Whiddy Island, Bantry, Co. Cork, in 1979. His report focused its unusually blunt criticisms on the two multinational companies involved while unfairly singling out a terminal controller for blame and dealing rather cursorily with the Irish authorities' failure to supervise safety practices. Lauded for his speedy, yet thorough, dispatch of a complex investigation, he was subsequently appointed chairman of committees formed to develop a national youth policy (1983–4) and advise on the regulation of the charity sector (1989); both produced comprehensive reports that were effectively ignored.
The 'higher law'
His rulings and legal writings during the 1980s and early 1990s elaborated subtle justifications for the then common judicial practice of using catholic natural law doctrine to discover rights implicitly sanctioned by the constitution. Costello argued that as the constitution was best understood in the light of its Christian preamble and of passages acknowledging an ethical order superior to formal law, Irish judges could override laws that contravened the classical Christian iteration of natural law formulated by St Thomas Aquinas, which stressed morality and economic justice.
Despite claiming extensive law-making powers for judges, he urged restraint. Accordingly, his jurisprudence generally deferred to the state and included judgments that extradited IRA fugitives, denied claims to certain rights by prisoners, and upheld the state's right to spend public revenues advocating one side in a referendum. In the leading case concerning the limits of judicial authority (O'Reilly v. Limerick Corporation (1989)), he held that the courts could not adjudicate over the state's distribution of public resources, as this required specialist knowledge. Conversely, because he believed in state power, he held its agents rigorously to account. Thus, his 1993 ruling that the OPW was not exempt from the planning process significantly hindered state bodies from proceeding arbitrarily with developments, while he cost the state an estimated £60 million in 1995 by quashing a withholding tax as unconstitutional.
His conservatism emerged in his habit of imposing onerous maintenance payments on delinquent husbands, particularly if violence was alleged. Likewise, in 1985 he bolstered religious control of the education system by affirming the dismissal of a teacher for contravening her school's catholic ethos by engaging in an unmarried relationship with a deserted husband. This outlook probably explains his otherwise surprising failure to gain judicial promotion during FitzGerald's terms as taoiseach between 1981 and 1987. He spent years watching lesser jurists ascend to the supreme court.
The 'X case' and after
In February 1992 the attorney general sought a high court injunction from Costello restraining a 14-year-old statutory rape victim, known as 'X', from travelling abroad for an abortion. Faced with the argument that the girl was likely to commit suicide if denied an abortion, he had to reconcile the equal right to life conferred upon the mother and foetus by the 1983 constitutional amendment. He granted the injunction on 17 February, after concluding that the certainty of the unborn child dying in an abortion outweighed the possibility of a suicide. Although he conducted the proceedings in camera, the Irish Times publicised the case without drawing a legal response from him.
Amid international condemnation, protests in Dublin, and polls suggesting that 66 per cent of the Irish public opposed the injunction, the supreme court overturned it on 26 February, with many experts observing privately that Costello's legal reasoning was sounder. His judgment likely contravened EEC law concerning the right to travel for services lawfully provided in other EEC countries, but this route was politically inexpedient and not pursued. A constitutional amendment was enacted later in 1992 guaranteeing the right of a pregnant woman to go abroad.
The X case shocked Costello's liberal admirers, yet his 1995 appointment as president of the high court was uncontroversial. The acting president since 1991, he then introduced procedures allowing urgent cases to be dealt with faster before retiring in December 1997. Appointed in 1999 to head an inquiry into the tax evasion conspiracy directed by the Guinness and Mahon Bank, he resigned a year later on medical advice. In retirement, he helped organise the 2003 Special Olympics world summer games held in Dublin.
After a long illness, he died on 6 June 2011 in Bloomfield Care Centre, Rathfarnham, Dublin, and was buried in Dean's Grange cemetery, Co. Dublin. His papers were deposited in the UCD archives. His daughter Caroline Costello became a high court judge.
Demonstrating that the ideological vacuity of Irish politics can facilitate resolute idealists, Costello foisted an incongruously radical manifesto on Ireland's most conservative party during 1964–5, which helped tilt the political spectrum leftwards (economically speaking) for the next twenty years, paving the way for greater social provision and a momentous expansion in education. Yet Ireland's populist political culture precluded any attempt at implementing the economic technocracy also envisaged by the 'just society', while Costello's distinguished term as attorney general showed that enlightened administration was a necessary, but not sufficient condition for reform.
Instead of prefiguring a planned economy compatible with catholic social principles, the 'just society' became a symbolic rallying point for an emergent progressive middle class, which expressed itself politically through a mix of welfare liberalism and secularism. As the erection of a social safety net enabled freer attitudes towards markets and morals, he grew increasingly estranged from his political heirs, most obviously during the X case, and was by his death in danger of being recast as a reactionary. He in turn believed legal guarantees best protected human rights when grounded in religious or philosophical conviction, and that western liberalism had undermined itself by repudiating Christianity for utilitarianism.