Declan Costello 1926 – 2011. Political idealist and judicial conservative

Sunday Business Post – June 12 2011

‘A member of parliament, a member of government, is concerned with social justice, with the creation of wealth and its distribution. As a judge one isn’t concerned with social justice as such, one is concerned with doing justice with the parties before him. It’s a different task.”

In this interview with David McCullagh, Declan Costello firmly made the distinction between the legislator who makes the laws and the judge whose job it is to apply them. Costello as a politician was radical on economic and social matters yet deeply conservative as a judge. These two public lives seemed at odds with one another. The 25-year-old’s inaugural Dáil speech in 1951 revealed two central tenets of his life – a belief in social justice and a strong personal faith -when he spoke of the ‘‘unChristian level of poverty’’ in Ireland.

His Dublin North West working-class constituency exposed the privately educated Xavier School boy to what he described as ‘‘the reality of life, the reality of Dublin, the reality of Irish life. There was terrific poverty in Ireland. Small [homes], three bedrooms, with 19 people living in them’’.

This motivated him to write Towards a Just Society, the policy document that formed the basis of Fine Gael’s 1965 election manifesto.

The 108-page document challenged the party’s psychology of permanent opposition and engaged it in a vigorous debate over social justice and redistributive economic policies. Contained in its nine chapters are proposals on education, economic planning, mental health, youth affairs and social welfare. Costello even advocated a greater control of the banking system.

‘‘Human nature being what it is, the commercial banks are perfectly aware,” he wrote, of the weak ‘‘moral influence of the Central Bank’’.

Private, shy and reserved, Costello was an untypical politician whose polite, genteel temperament was not always suited for the robust nature of political action. He was frustrated with 18 years on the back benches, notwithstanding his father, John A Costello, holding the office of Taoiseach from 1954 to 1957. Father and son retired from politics in 1969. ‘‘I became very disaffected – we got these policies, now what were we going to do with them?” he said in an interview with this author in 2008.

The struggle between the liberal and conservative wings of Fine Gael became public following party leader Liam Cosgrave’s remarks at the 1972 Fine Gael ard fheis in Cork. A keen huntsman, Cosgrave departed from his script to compare his rivals to ‘‘mongrel foxes; they are gone to ground but I’ll dig them out, and the pack will chop them when they get them’’. Costello remembered that period with fondness: ‘‘I just couldn’t believe my ears. And who was he talking about? And suddenly I remembered, he was talking about Garret and me!” Although born only months apart in 1926 and buried from the same Donnybrook church within weeks of one another, Costello and Garret FitzGerald had quite distinct definitions of social democracy.

FitzGerald’s was bound up with a vision of a secular Ireland, while Costello’s was defined by traditional Catholic values. Contrary to popular perception, Costello and Cosgrave’s political dispositions were actually very similar. Neither was particularly liberal. The belief system of both men reflected that of their fathers (Cosgrave’s father was WT Cosgrave, president of the Executive Council of the Irish Free State).

This core ethos of loyalty to the state and reverential trust in its institutions ultimately translated into deference towards the rule of law. ‘‘I never had a row with him except that thing, the mongrel foxes,” Costello said, ‘‘He was a good chairman, he ran the government very well.” Although Costello was ‘‘mildly disappointed’’ not to get a full ministry, Cosgrave’s decision to appoint him Attorney General, in 1973, proved to be inspired.

The setting up of the Law Reform Commission and the separation of the offices of Attorney General and Director of Public Prosecutions were landmark reforms. Costello was quite conformist in his outlook and was very reluctant to find any statutes unconstitutional as a High Court judge for two decades from 1977. Mr Justice Frank Clarke of The High Court, chairman of Costello’s new constituency of Dublin South West during the 1973-77 government, feels that his predecessor’s legal decisions can be seen in the context of his deep sense of the state.

As a consequence of his absolute belief that upholding the institutions of the state was paramount, Costello tended to be highly critical of state officials who came before him and who fell below these exacting standards. He wrote a number of decisions restricting the right to seek remedies and believed in the providence of judicial restraint and the separation of powers. The broad thrust of his decisions was hostile to claims of rights and/or favourable to the state authorities. An example of his jurisprudence is the first case taken by Patricia McKenna challenging government expenditure on one side in a referendum. He comprehensively rejected her claim, yet his reasoning was more or less completely contradicted later by the Supreme Court when dealing with her second challenge.

Other examples of his rejection of claimed constitutional rights were Murray v Ireland, rejecting a life prisoner’s claim to conjugal rights, and Heaney v Ireland, rejecting a claim based on the right to silence. He granted the injunction in The X case that was later set aside by the Supreme Court.

Two months after the September 2008 bank guarantee, Costello said he was disappointed that the distraction of economics meant that a second Just Society document was probably not possible. He lamented that the ‘‘lack of concern for social justice . . . was not a major thing in politics’’.

In his heart Declan Costello was always a political idealist, even a romantic, but his courts did not tolerate any such notions.

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