Thursday 30 March 2017

Declan Costello

An iconoclastic radical in politics but a conservative Catholic in the courts, this man's commitment to principle was unquestionable, writes Ronan Fanning

Declan Costello, who died last week aged 85, is unique among Irish politicians in that his reputation rests upon an initiative he launched when he was a mere backbencher: the Just Society document of 1964. Its origins lay in the grinding deprivation and appalling housing conditions of the poor he first encountered in Dublin North-West, where he had won a Dail seat in 1951, aged 25.

Until then, he had been cocooned by the comforts of middle-class privilege, by a glittering undergraduate career at UCD (festooned with first-class honours and medals for debating), and by his admission to the Bar at the age of 22. His family's affluence also allowed him recuperate abroad from TB and he was in Switzerland in 1948 when his father, John A Costello, a leading barrister who had served as Attorney General in W T Cosgrave's government in the 1920s, became Taoiseach.

His father's shadow was sometimes more of a hindrance than a help to political advancement, as in 1954, when timidity about possible accusations of nepotism denied him the ministerial appointment in his father's second government to which his outstanding intelligence and ability entitled him. He also shared something of his father's semi-detached Law Library attitudes to politics.

He refused to stand in the 1969 election and, although he did successfully contest the 1973 election, his acceptance in 1977 of an appointment as a judge of the High Court (of which he was president in 1995-97) marked the end of his political career.

Yet the significance of that truncated political career was immense. For Declan Costello envisaged a new Ireland and had no time for the politics of the Civil War. Hence his arguing for the de facto recognition of Northern Ireland and for cross-border economic co-operation as early as 1951. Hence, too, his initiatives to modernise Fine Gael, such as the establishment of the Fine Gael Research and Information Centre and his joint editorship of a new party newspaper, The National Observer.

Costello's conviction that the role of government should be to instigate economic development and then redistribute wealth culminated in his Just Society proposals of 1964. These included economic planning carefully targeted at both the public and private sectors (as opposed to what he dismissed as the merely aspirational economic programming of the Lemass governments); the appointment of a Minister for Economic Affairs; government control of the banks' credit policies; and an emphasis on direct instead of indirect taxation.

He knew that his ideas would never win the support of the Fine Gael leader James Dillon, or of the party's front bench; indeed Vincent Browne has argued he "expected them to be rejected, thereby providing him with a pretext either to leave politics or join the Labour Party".

But he wrote to each member of the parliamentary party seeking their support while admitting that he was in a minority on the front bench and won their endorsement. Towards a Just Society served as the documentary basis for the Fine Gael manifesto, but it came too late to affect the outcome of the 1965 election.

Dillon's immediate resignation as party leader and ensuing right wing resentment scuppered Declan Costello's chance of the succession that fell instead to Liam Cosgrave, a choice that compounded Costello's disenchantment with the conservatism of the party leadership and prompted his decision not to stand in the 1969 election. But Towards a Just Society proved the catalyst that transformed Fine Gael because it attracted an injection of talented and left-leaning party members -- of whom Garret FitzGerald was the outstanding example.

The gravity of the Northern Ireland crisis prompted Costello's return to the Dail in 1973 when he was disappointed not to be offered a senior ministry in Liam Cosgrave's government in which he was appointed Attorney General.

His outstanding achievement was his successful conduct of the Irish government's case against the UK before the European Court of Human Rights in regard to the torture of prisoners in the North when he was acclaimed as having wiped the floor with his British counterpart.

He also played a role negotiating the Sunningdale agreement of 1973 and led the government's defence against the case taken by Kevin Boland that the agreement was unconstitutional. That defence denied that the government's declaration in the agreement acknowledged that the North was part of the UK but that it merely stated how the policy of seeking a united Ireland could be accomplished.

Legally, that defence was watertight and successful. Politically, it was disastrous.

The Unionists saw it as vindication of their suspicions that the agreement was designed to lure them into a united Ireland and the agreement collapsed.

That stress between legal and political imperatives was reflected in tensions within cabinet between Costello and FitzGerald as Foreign Affairs Minister. Liam Cosgrave's support for Costello, who he saw as a counter-weight to FitzGerald, of whom he was innately suspicious, was unswerving: "He was an outstanding Attorney General", he publicly declared in 2009; "I never found him wrong in anything".

There is a stark contrast between Costello's commitment to social justice (including his life-long support of the intellectually disabled through St Michael's House) and some of his High Court judgements. In 1985, he upheld the dismissal of Eileen Flynn, the teacher sacked from a Wexford convent when she became an unmarried mother, endorsing the nuns' reasoning that her "conduct was capable of damaging Catholic norms of behaviour".

Still more notorious was his X case judgement in 1992 granting an injunction (subsequently overturned by a more humane Supreme Court) to Harry Whelehan, the Attorney General, preventing a 14-year-old girl from going to England for an abortion.

Costello's integrity and commitment to principle have been universally acknowledged. The irony is that while in party politics he will be remembered as an iconic and iconoclastic radical, as a judge he will be remembered as a quintessentially Catholic conservative.

Ronan Fanning is Professor Emeritus of Modern History at University College Dublin

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