John Costello 'Announces' the Repeal of the External Relations Act

John Costello 'Announces' the Repeal of the External Relations ActAuthor(s): Ian McCabeSource: Irish Studies in International Affairs, Vol. 3, No. 4 (1992), pp. 67-77Published by: Royal Irish AcademyStable URL: http://www.jstor.org/stable/30001798 .

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John Costello 'Announces' the Repeal of the External Relations Act

Ian McCabe

In August 1948, members of the British cabinet were advised that Anglo-Irish relations were 'friendlier than ever'.' Nine months later, John A. Costello, taoiseach of the Republic of Ireland,2 threatened in Diil Eireann: 'We can hit the British government in their prestige and in their pride and in their pocket'.3 The change in relations resulted from Costello's surprise 'announcement' in Ottawa of his government's intention to 'ditch'4 Eire's last tenuous constitutional link with the British Commonwealth, namely the Executive Authority (External Relations) Act, 1936.6

1. PRO Cab 129/29 CP(48)205, 17 August 1948, p. 97. Cabinet paper prepared by the secretary of state for Commonwealth relations, Philip Noel-Baker.

2. Following the enactment of the Republic of Ireland Act, 1949, the descriptive status of the twenty-six-county state is Republic of Ireland. As yet the constitution has not been amended to accommodate the new title. Prime Minister Clement Attlee, in protracted negotiations with the prime minister of Northern Ireland, Basil Brooke (November 1948-March 1949), refused to refer to the six counties as Ulster, nor would he use the term 'Irish Republic' when referring officially to the 26-county state in Ireland. PRO Cab 130/44 GEN 262 (see R. Fanning, 'The response of the London and Belfast governments to the declaration of the Republic of Ireland, 1948-49', International Affairs 58, no. 1 (Winter 1981-2), 95-114). During the second reading of the Ireland Bill, in May 1949, Attlee in his opening paragraphs expressed a sympathetic awareness that 'some hon. members object to this nomenclature; they hold that it implies that the Republic extends to the whole area of the island. In this Bill we make it clear that this is not so.' He explained that 'the fact is that the name "The Republic of Ireland" is that selected by the Irish government ... One cannot in international relations habitually refer to a country by some other name than that by which it claims to be known, and it would be quite impossible for us at all events in a statute to adopt a different name.' A couple of paragraphs later, Attlee-in a token of semantic acquiescence to Basil Brook-began: 'I have received representations from the government of tire...' (HC vol. 464, cols 1855-6, 11 May 1949).

3. His remarks were greeted by applause: DD vol. 115, col. 807, 10 May 1949. 4. Gazette Montreal, 8 September 1948. 5. The Executive Authority (External Relations) Act 1936 (No. 58 of 1936), 12.12.1936,

was the last remaining constitutional link between fire, the Crown and the British Common- wealth. The Act declared and enacted that so long as Saorstat tireann was associated with members of the Commonwealth, and so long as the king recognised by those nations as the symbol of their cooperation continued to act on behalf of each of those nations (on the advice of the several governments thereof), then 'for the purposes of the appointment of diplomatic and consular representatives and the conclusion of international agreements, the king so recognised may, and is hereby authorised to, act on behalf of Saorstat lireann for the like purposes as and when advised by the executive council so to do'.

Irish Studies in International Affairs, Vol. 3, No. 4 (1992)

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While the announcement surprised the British government,6 they were not aware that members of the Irish coalition government also were shocked. Costello's lack of prior consultation even with his own cabinet' had given rise to speculation that the 'announcement' was, if not opportunistic, an unpremeditated 'goof'. In fact, for several months before the 'announcement' a combination of political pressures, constitutional manoeuvres and diplomatic rumours had been forming an expectation that the External Relations Act, as it was popu- larly known, would be repealed. This expectation, based on political realities, formed a supportive background in Ireland to the eventual 'announcement' by Costello. Chief among the pressures for repealing the Act or for some similar anti-Partition gesture were the demands from a section of the radical republican party Clann-na-Poblachta, a volatile member of Costello's multi-party coalition.

During the summer of 1948 Costello expected to be faced with the embarrassing prospect pf a private member's bill to repeal the External Relations Act.8 The Act was Eire's last constitutional link with the British Common- wealth. Costello apparently had hoped to avoid having to publicly repeal this outworn Act, thus upsetting Anglo-Irish and indeed Commonwealth relations. Instead, he had hoped that the proceduresrelating to the Act would be allowed to become quietly defunct.9 As a result, Eire's previously anomalous relationship with the Commonwealth would be dignified by the forging of a new category of 'associate' membership.10 Acceptance of such a category by Britain would have created a two-tier Commonwealth. The influential Sir Norman Brook, secretary to the British cabinet, was strongly opposed to 'weakening' the Commonwealth. In order to set an example to India and Ceylon he intended to

6. HC vol. 464, col. 1854, 11 May 1949. Attlee stated: 'It came without any particular notice to us'.

7. N. Browne, Against the tide (Gill and Macmillan, Dublin, 1986), 129. See cabinet minutes for 1948: NASPO Cab 2/10.

8. Canadian Department of External Affairs (CDEA 50021-40 sub. ref. 199/5). Note of a conversation principally between John Costello and the prime minister of Canada, MacKenzie King, at his residence, Kingsmere, 9 September 1948.

9. One of the effects of the procedures of the External Relations Act deemed that tire was covered by the toast to the king at official functions. Attempts were made to amend the procedures relating to the Act: (a) Costello, when in Ottawa, believed that he had secured the principle of a separate toast to the president of tire; (b) Minister of External Affairs Sedn MacBride attempted to have tire's high commissioners in Commonwealth countries upgraded to ambassadorial rank (NASPO S Cab 2/190 G.C. 5/32, 19 August 1948: see memorandum in file 14333A); (c) more dramatically, Sein MacBride made a flawed start by ignoring the procedures of the External Relations Act in asking President Per6n of Argentina to re-address the letter of credence of his minister to tire, Jos6 Bessone, from the king to the president of tire (NASPO S 14210 B/1).

10. During the developing tire-Commonwealth constitutional crisis in the summer of 1948, Costello frequently stressed 'associate' membership of the British Commonwealth, for example while answering a provocative question from Peadar Cowan about tire's relationship with the Commonwealth (DD vol. 112, col. 1555, 28 July 1948), and also during the debate ratifying the 1948 Anglo-Irish Trade Agreement (DD vol. 112, cols 2143 and 2382, 6 August 1948). In one paragraph of his speech to the Canadian Bar Association in Montreal, 1 September 1948, Costello uses the word 'association' twice. Extracts of Costello's speeches are published in N. Mansergh (ed.), Documents and speeches on British Commonwealth affairs, 1931-1952, vol. II (Oxford University Press, 1953), 801. Immediately after making the 'announcement' of the intention to repeal the External Relations Act, Costello stated that 'there was nothing to prevent Ireland continuing in an even closer association with the British Commonwealth, though not necessarily as a member of it' (Ottawa Journal, 7 September 1948).

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thwart Éire's hope of diluting her constitutional link with the Commonwealth. He prepared a statement outlining the serious consequences for Éire if she repealed the External Relations Act." This warning was already agreed informally by the prime ministers of Canada, Australia and New Zealand.12 It was intended that the statement would form part of a general constitutional pronouncement defining membership of the Commonwealth and would then be issued at the end of the forthcoming meeting of Commonwealth prime ministers to be held in London during October 1948.13

Costello's decision to make the surprise announcement before the threatening pronouncement from the Commonwealth prime ministers' meeting pre-empted a major constitutional crisis between Éire and Britain, and also involved the other members of the Commonwealth. As a bonus, the 'announcement' allowed the coalition to maintain power by defusing the simmering conflict between radical republicans and conservative pro-Commonwealth members of the government. Anglo-Irish diplomacy failed to intervene during this holiday period to resolve the emerging clash between radical Irish republicanism and British and Irish supporters of Eire's constitutional link with the British Commonwealth.

According to the terms of the Anglo-Irish Agreement of 1921-2, the Irish Free State was a dominion member of the British Commonwealth.14 Éire's relationship to the Commonwealth was illustrated most publicly by article 3, which provided for the appointment of a governor-general to act as the representative of the Crown. As allowed by the 1931 Statute of Westminster, Eamon de Valera, upon coming to power in March 1932, signified his intention to amend the terms of the treaty.'5 He repealed the oath of allegiance to the new 1922 constitution,16 abolished appeals from the Irish supreme court to the privy

11. PRO PREM 8/1864, document no. 35966. 'Commonwealth relationship: statement of general principles', 14 September 1948. Excerpt from paragraph 7 read: 'Thus, if the government of Eire fulfil their declared intention to repeal the tire Executive Authority (External Relations) Act, 1936, they must be regarded as having severed the last constitutional link connecting tire with the Commonwealth, and tire must be treated as having ceased to be a member of the Com- monwealth'. If implemented, the effect would have been that tire would lose reciprocal trade and citizenship arrangements with members of the Commonwealth, in particular mainland Britain, where many Irish emigrated to and where they were not regarded as aliens.

12. PRO PREM Cab 134/118 CR(48)5. Committee on Commonwealth Relations. 13. PRO PREM 8/1864, document no. 35966. 'Commonwealth relationship: statement of

general principles', 14 September 1948. 14. The use of the term 'British Commonwealth' first appeared officially in March 1921 in a

paper prepared by the colonial office, probably the first time it was used in a treaty in preference to the more colonial term 'Empire'. See N. Mansergh, The Commonwealth experience. The Durham Report to the Anglo-Irish Treaty, vol. 1 (Macmillan, 1982), 30.

15. Statute of Westminster, 11 December 1931 (22 Geo. V, Ch. 4). Clause 3 states: 'It is hereby declared and enacted that the parliament of a dominion has full power to make laws having extra-territorial operation'. On 15 December 1921 de Valera offered a private session of the Diil 'Document Number 2' as a counter-proposal to the treaty. The principal difference between this document and the treaty was a refusal either to swear an oath of allegiance to the British approved constitution nor to offer fidelity to the Crown. See A. Mitchell and P. 0 Snodaigh (eds), Irish political documents 1916-1949 (Irish Academic Press, Dublin, 1985), 123. See also R.F. Foster, Modern Ireland 1600-1972 (Allen Lane, Penguin Press, 1988), 505-6.

16. Constitution (Removal of Oath) Act, 1933. No. 6: An act to remove the obligation now imposed by law on members of the Oireachtas and ministers who are not members of the executive council to take an oath, and for that purpose to amend the constitution and also the constitution of the Irish Free State (Saorstat tireann) Act, 1922 [3 May 1933].

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council" and diminished the powers of the govemrnor-general.'" In June 1936 de Valera's reforms were hastened by the Abdication Crisis.'9

As a result of the Statute of Westminster, the executive council needed to approve 'any alteration in the law touching the succession to the throne or the royal style'.2? Accordingly, the executive council met on the morning and evening of 10 December to draft twofold legislation to recognise the abdication of King Edward VIII and to appoint his successor, George VI.21 The following day an act was passed deleting all mention of the king and his representative, the governor-general, from his executive functions in the internal affairs of the state.22 A day later, the Extemrnal Relations Act was passed, allowing George VI to be reappointed in matters relating only to the external affairs of the state. In practice his function was confined to accrediting diplomatic and consular representatives to and from the state.23 The combined effect of this legislation was later described by the leader of the Irish Labour Party as putting the king out at the front door while 'the back window was left open to bring him in again. That was the dishonesty and hypocrisy of the Extemrnal Relations Act at that time.'i"

In Britain the Extemrnal Relations Act was accepted as 'a tenuous link with the king' sufficient for the Irish Free State to remain a member of the British Com- monwealth.25 De Valera later claimed that he had implemented and retained the External Relations Act because 'It does enable an association to be maintained which, I think, is valuable both materially and from the point of view of the ending of Partition'.26 Despite its hasty introduction, the External Relations

17. Constitution (Amendment No. 22) Act, 1933 (No. 45 of 1933): An act so to amend article 66 of the constitution as to terminate the right of appeal to his majesty in council [16 November 1933].

18. Constitution (Amendment No. 20) Act, 1933 (No. 40 of 1933): An act so to amend article 37 of the constitution as to transfer from the representative of the Crown to the executive council the function of recommending under that article the purpose of the appropriation of money [2 November 1933]. See also: Constitution (Amendment No. 21) Act, 1933 (No. 41 of 1933): Au act to amend the constitution by deleting the provision now contained therein as to the withholding by the representative of the Crown of the king's assent to bills and the reservation of bills for the signification of the king's pleasure [2 November 1933].

19. His Majesty's Declaration of Abdication Act, 1936 (1 Edward 8, Ch. 3, 11 December 1936).

20. Paragraph 2 of the preamble of the Statute of Westminster, 1931, states that '... any alteration in the law touching the succession to the throne or the royal style and titles shall here- after require the assent as well of the parliament of all the dominions as of the parliament of the United Kingdom ...'. Reputedly de Valera was persuaded to recognise King Edward's abdication since otherwise he would remain king of Ireland, with the possibility of Mrs Simpson as queen of Ireland (M. MacDonald, Titan and others (Collins, London, 1972), 69).

21. NASPO S 9429: the file contains extracts of morning (G.C. 7/377) and evening (G.C. 7/378) cabinet meetings on 10 December 1936.

22. Constitution (Amendment No. 27) Act, 1936 (11 December 1936). 23. Executive Authority (External Relations) Act, 1936 (No. 58 of 1936), 12 December 1936. 24. DD vol. 113, col. 958, 2 December 1948. 25. H. Duncan Hall, A history of the British Commonwealth of Nations (Van Nostrand

Reinhold, London, 1971), 814-17. 26. DD vol. 107, col. 94, 24 June 1947. More pragmatically, the procedures of the Act

avoided the possibility that other Commonwealth members would simply refuse to receive or appoint representatives from tire unless under the auspices of the king. For example, the Canadian high commission in Ireland reported to the Department of External Affairs, Ottawa, the rumour that the Vatican had in 1947 refused to accept the papers of the Irish 'ambassador', Joseph Walshe, because the credentials were signed by the president of Ireland instead of the king (CDEA 5002140, report no. 121, 14 August 1948). The new Republic experienced difficulties in

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Act (ERA) survived unscathed for nearly a decade. In November 1945 the anomalies of the Act were queried at the Fianna Fgiil Party Ard-Fheis.27 By 1947 the discontent had spread, and members of the opposition party, the tra- ditionally pro-Commonwealth party Fine Gael, began questioning the anomalies of Éire's link with the Commonwealth. A leading member of Fine Gael high- lighted the embarrassment of the situation whereby Éire's ambassadort8 to the Vatican carried letters of credence written in Irish and signed by the king. He argued that Éire's ambassador to the pope was in fact the 'direct and personal representative of the individual from whom he gets his credentials'.29

De Valera had once believed that if the procedures of the ERA were 'incon- venient', he could ignore them and simply arrange for other methods of accrediting representatives abroad.30 However, it was rumoured in diplomatic circles that when in 1947 de Valera attempted to appoint his 'ambassador' direct to the Holy See, the Vatican refused to accept the credentials because they were signed by the president of Ireland instead of the king.31 Such a rumour, had it been made public, would have caused consternation in Catholic Eire, especially given the further irony that the king's formal title included the papal honour 'Defender of the Faith'.32 Publicly de Valera continued to defend the ERA, citing the advantages which it bestowed.33 Privately he complained to the UK representative to Eire, Lord Rugby, that the Act did not fulfil its intended role of bringing Northern Ireland 'into association' with tire but instead had involved him in 'constant criticism and humiliation'.34 In October 1947 de Valera requested the attorney-general, Cearbhall Ó Dalaigh, to draft a bill to repeal the ERA.35 Despite reputedly being 'begged'" by Rugby 'not to lay hands'37 on the Act, de Valera was apparently

appointing an envoy to Hong Kong in 1951 (PRO DO. 35 3903). Similarly, in 1953 Australia refused to appoint an ambassador to the Republic of Ireland because they would not ask the queen 'to sign a document which could and would be interpreted as referring to Ireland as a single entity, including Northern Ireland' (CDEA RG25, vol. 84-85, box 100/7545-B-40p-2).

27. Fianna Fiil Ard-Fheis (annual conference) reported in The Irish Press, 7 November 1945. In July 1945, during the debate on the estimates for External Affairs, de Valera quoted from five dictionaries to prove that tire qualified as a republic (DD vol. 97, cols 2570-2, 17 July 1945).

28. NASPO S 5857C. Walshe was the first envoy from tire to carry the official title of ambassador. See letter from Costello to Walshe, 13 August 1954.

29. DD vol. 106, vols 2299-325, 20 June 1947: Patrick McGilligan, a professor of constitutional law, moved that estimates for the Department of External Affairs be referred back for reconsideration. He was supported in his criticism of the External Relations Act by the influential independent deputy James Dillon (later leader of Fine Gael): DD vol. 106, col. 2327, 20 June 1947.

30. Speech to party conference reported in The Irish Press, 7 November 1945. 31. CDEA 50021-40, report no. 121, 14 August 1948. 32. The title 'Defender of the Faith' was a papal honour bestowed upon the then mono-

gamous Henry VIII. Reputedly that part of the monarch's title was dropped when the king signed letters of credence to the Vatican.

33. DD vol. 107, col. 95, 24 June 1947. 34. PRO DO 35 3955, Rugby to CRO, 27 October 1947. 35. Bruce Arnold interviews Frederick Boland, former secretary of the Department of

External Affairs: tape lent by Noel Browne, with permission to quote kindly agreed by Bruce Arnold. According to Frederick Boland, it was the debate on External Affairs in June 1947 that convinced de Valera that he would have to repeal the ERA.

36. NLI Ref. MS 22848: private papers of Sir Shane Leslie. Letter from President Sein T. O'Kelly to Sir Shane Leslie (National Library of Ireland).

37. PRO DO 35 3955: Rugby to CRO, 1 November 1947.

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resolute. By January 1948 the draft of the bill to repeal the ERA included a reference to the state as a 'republic'.38

By the eve of the February 1948 general election in Éire, Rugby reported that the annulment of the External Relations Act was inevitable: 'No party has left the door open for any other course'.39

GENERAL ELECTION IN ÉIRE

Reputedly, de Valera was prompted to call the general election to stymie the support of his potential usurper, Sein MacBride, and his new mould-breaking40 Clann-na-Poblachta party. Despite the threat to Fianna Fiil as holder of the republican mantle, de Valera did not mention his plans to amend the External Relations Act in his manifesto. Not surprisingly, neither did Fine Gael, who were assumed to be pro-Commonwealth.41 MacBride admitted that his was the only party to seek a mandate to repeal the External Relations Act and that this was rejected.

In February 1948 the Fianna FAil government was replaced by an 'inter- party'42 coalition headed by Fine Gael and supported by both divisions of the Labour Party, Clann-na-Talmhan (representing farmers), Clann-na-Poblachta and twelve Independents.43 Despite their disparities the coalition parties were united in their common ambition to oust Fianna FAil from its sixteen years of rule.

MacBride, speaking as minister for external affairs, magnanimously accepted the decision of the electorate to reject his proposal to repeal the External Relations Act. However, his republican supporters may have listened more attentively to the remainder of his statement that 'we as a party do not abandon, waive, mitigate or abate in any respect any portion of our policy'.44

While MacBride was under pressure from the predominantly republican

38. University College Dublin Archives Dept. Draft copy of bill in the private papers of Cearbhall Ó Dalaigh (later elected president of Ireland), Archives Dept. ref.: P51/2A, items 1-6.

39. PRO Cab 134/118: Rugby to CRO reports on electioneering in Éire, 27 January 1948, pp 55-6.

40. According to John Costello, there were no essential differences between the two principal political parties: 'Those differences which existed were based on personalities, on memories of a comparatively recent past, and on doubts whether agriculture or industry would form the most appropriate basis for the Irish economy of the future' (PRO FO 371 89823, 24 January 1950: report from British Legation to the Holy See). Clann-na-Poblachta was founded in July 1946, in Dublin, principally by Republicans who now had 'a platform, a programme, and a party'. Bell Bowyer, The secret army, the IRA 1916-1979 (Academy Press, Dublin, 1979), 243.

41. The Irish Independent, 6 February 1946, quoted the leader of Fine Gael at their Ard- Fheis: 'Ireland's political liberties, military security and hope of ending Partition were firmly bound up with membership of the British Commonwealth'. Garret Fitzgerald recollects that while canvassing for Fine Gael in February 1948, 'Fine Gael supported Commonwealth membership, and Joan and I canvassed accordingly; we particularly remember reassuring the inhabitants of Waterloo Road on the point' (G. Fitzgerald, All in a life (Gill and Macmillan, Dublin, 1991), 45).

42. Sein MacBride coined this phrase: personal interview, 6 January 1987; see also his interview with James Downey, The Irish Times, 1 January 1979.

43. C. O'Leary, Irish elections 1918-1977 (Gill and Macmillan, Dublin, 1979), 103. 44. DD vol. 110, col. 25, 18 February 1948.

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membership of his party to unhinge Partition,45 it was a former parliamentary member of Clann-na-Poblachta, Peadar Cowan, who initiated a series of D~iil questions designed to embarrass the government by highlighting Eire's anomalous membership of the Commonwealth.46 His questions were more penetrat- ing than the routine ritual taunts from a responsible opposition party. It was rumoured that Cowan might attempt to introduce a private member's bill to repeal the ERA. On 23 July, possibly placating republican pressure, Costello stated confidently: 'I say here, realising that I must speak with restraint and a sense of responsibility, that, for the first time since 1922, this cabinet will, by its policy and its actions, give some hope of bringing back to this country the six north-eastern counties of Ulster'.47

Under pressure from Cowan, MacBride had made the unequivocal statement that 'we are not a member of the British Commonwealth'.48 The secretary of the Department of External Affairs, Frederick Boland, advised Rugby's principal secretary that the government would have to stand by MacBride's 'unpremeditated' statement.49 A week later, Cowan asked Costello the 'date and circumstances under which Ireland ceased to be a member of the British Commonwealth of Nations'. In reply, Costello stated that Ireland ceased formally to be a member of the Commonwealth by a process of 'gradual development'; however, he claimed that it remained 'associated with the other members'.50

A TWO-TIER COMMONWEALTH?

The Commonwealth Relations Office established a committee to consider how a new commonwealth of British and Associated Nations could be formed to cater for members such as India, Pakistan and Ireland 'who might be reluctant to accept it in its present form'. The committee reported in May 1948 that as the Crown was the only formal link uniting the Commonwealth, there would be

45. Clann-na-Poblachta's influence in the government was disproportionate probably because the coalition also was dependent on the party's volatile membership. The republicans in Clann-na- Poblachta were becoming impatient and MacBride was being accused of having 'sold out' by turning from a firebrand into a statesman. The socialists in Clann-na-Poblachta were more satis- fied because some of their policies on health and housing were being implemented owing to the efforts of the minister of health, Noel Browne, and the post-war boom in public authority and private house construction. (Personal interview with George Lawlor, former member of the IRA and founder member of Clann-na-Poblachta, 4 December 1990.)

46. DD vol. 112, cols 985-95, 21 July 1948. 47. DD vol. 112, col. 1520, 23 July 1948. This statement was probably based on his

expectation that he would be approached in Canada by 'generals' to negotiate bartering neutrality for joining NATO. Costello's expectation of an approach in Canada by 'generals' is referred to by Frederick Boland, former secretary of the Department of External Affairs, during his interview with Bruce Arnold (tape lent by Noel Browne, with permission to quote kindly agreed by Bruce Arnold). Interestingly, on 21 July MacBride stated that 'Our sympathies, therefore, lie clearly with Western Europe' (DD vol. 112, col. 994, 21 July 1948). See T.C. Salmon, Unneutral Ireland, an ambivalent and unique security policy ( Clarendon Press, Oxford, 1989), 168.

48. DD vol. 112, col. 988, 21 July 1948: debate on the estimates for the Department of External Affairs.

49. PRO DO 35 3934: principal secretary of UK Representative's Office in Dublin, Neil Pritchard, to Norman Archer, CRO, 22 July 1948.

50. DD vol. 112, col. 1555, 28 July 1948.

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grave dangers in attempting to weaken the quality of that bond.51 Unfor- tunately, members of the Irish cabinet appear to have maintained the impression that a new 'associate'-type membership of the Commonwealth was developing. A file in the National Archives contains articles from magazines discussing the issue of associate or two-tier membership of the Commonwealth.52 Appended to these articles was the opinion: 'The Minister has evidence that these excerpts reflect accurately a current trend of thought in British official circles'.53

De Valera, while in power, was apparently reluctant to repeal the ERA because he continued to hope that the Act might help to unite Ireland.M By the summer of 1948 de Valera, albeit in opposition, had cast aside such reser- vations. During the adjournment debate, the Labour Party leader, William Norton, admitted his dislike for the ERA.55 De Valera then challenged him to repeal, promising that 'You will get no opposition from us'.56 By August 1948 there was all-party support for the notion that Eire was not a formal member of the Commonwealth. This left the ERA looking outmoded and highly vulnerable.

On 19 August 1948, the Irish cabinet met to discuss three interrelated topics concerning membership of the Commonwealth.57 Firstly, they decided that Eire should be represented in London at the forthcoming meeting of Common- wealth prime ministers in October, though not as 'members of the Common- wealth'.58 Secondly, they decided that a memorandum should be dispatched to the British government, requesting them to change the title of Éire's high commissioners in Commonwealth countries to that of ambassador. They considered that the title of high commissioner was 'misleading' regarding the nature of the relationship between Ireland and the states of the Commonwealth.59 Thirdly, the cabinet approved Costello's proposed speech to the Canadian Bar Association in Montreal about the constitutional development of Éire.60 This speech contained a reference to the 'inaccuracies and infirmities' of the External Relations Act and a claim that it was two-thirds defunct. This was interpreted by Sein MacBride as sounding the death-knell of the Act.6' An alternative interpretation could be that the gist of the speech was a friendly hint to the British government to accept Éire's 'associate' relationship with the Common-

51. PRO Cab 134/118 CR(48)2, 21 May 1948: report by Official Committee. 52. The NASPO S 14333A file contains a copy of articles from magazines, including one

from the New Statesman, June 1948. See also S 13760. 53. Ibid. 54. DD vol. 197, col. 92, 20 June 1947. 55. DD vol. 112, col. 2440-1, 6 August 1948. 56. DD vol. 112, col. 2441, 6 August 1948. 57. NASPO Cab 2/10 G.C. 5/32, 19 August 1948. 58. NASPO S 14333A. 59. NASPO S 14331. 60. Personal interview, Professor Patrick Lynch, 22 December 1988. 61. Personal interview, Sein MacBride, 6 January 1987. The twenty-four-page speech was

interpreted as containing 'a criticism' of the External Relations Act. It referred to the 'inaccuracies and infirmities' of the External Relations Act but refrained diplomatically from suggesting the repeal of the Act; instead Costello merely asked, 'in any event is it fruitful, with the mentality of the person who would peep and botanize upon his mother's grave, to inquire too legalistically into the nature of Ireland's association with the Commonwealth; to insist that it does not conform to an existing pattern; or that the association has no common factor with traditional constitutional concepts?' Extracts from Costello's speech to the Canadian Bar Association in Montreal, 1 September 1948, are published in N. Mansergh (ed.), Documents and speeches on British Com- monwealth affairs, 1931-1952, vol. II (Oxford University Press, 1953), 801.

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wealth while allowing the remaining procedures of the External Relations Act to wither away quietly without domestic or international fuss. This could be achieved by such methods as allowing Éire's high commissioners to be styled ambassadors and, more immediately, acknowledging that at Commonwealth functions the toast to the Crown did not include Éire and that a separate toast to the president of Éire was due.

COSTELLO IN CANADA

As a first step towards ending the procedures attached to the ERA, Costello hoped that Eire's separateness from the Commonwealth would be recognised by a separate toast to the president of Eire at official functions in Canada. At the beginning of September 1948, the governor-general of Canada, Lord Alexander, hosted an official dinner in honour of Costello. Costello took the trouble to ensure that in response to the loyal toast a separate toast to the president of Ireland would be retumrned. The agreed return toast to the president was reneged upon. Costello later explained to the Canadian minister of external affairs, Mr St Laurent, that the loyal toast did not include Eire. According to Costello, this incident confirmed 'the views we held as to the confusion and difficulty created in our intemrnational relations by the ERA'.62

The rebuff was compounded by another damaging incident which occurred at that dinner. Lord Rugby, quoting the president of Éire, Seán T. O'Kelly, reported that during the dinner Costello was annoyed at the 'pointed way' in which replicas of the 'Roaring Meg' cannon were placed on a table close by. According to O'Kelly, Costello said that 'at that stage I was getting sore about things and during the course of the dinner made the decision to cut through all this and made the statement which brought on the repeal of the External Relations Act'.63 It is this story that has survived in popular and diplomatic folklore, probably because it is more dramatic, providing an easily under- standable alternative explanation to the version involving the more intricate diplomatic niceties attached to the toast.

PRESS PUBLICISE REPEAL

Coincidentally, as if to take the matter out of Costello's hands, a national newspaper, the Sunday Independent, appeared with a front-page banner headline 'EXTERNAL RELATIONS ACT TO GO'.64 Costello, as recollected

62. Ibid. See also F. McEvoy, 'Canada, Ireland and the Commonwealth: the declaration of the Irish Republic, 1948-49', Irish Historical Studies 24, no. 96 (November 1985), 506-27.

63. PRO DO 35 3969. Account by Rugby of his interview with President Sein T. O'Kelly, reported to CRO, 21 December 1948. (The cannon was used to defend the walls of Derry against the army of the Catholic King James.)

64. Sunday Independent, 5 September 1948. There has been some controversy as to whether the editor of the Sunday Independent, Hector Legge, was forewarned of the 'announcement' by a cabinet member. Logically, since there was no decision by the cabinet to repeal the ERA, there was no leak. Hector Legge seemingly based his 'intuitive' conclusion that 'the government is going to "scrap" the Act' on the combination of ministerial statements to the effect that Ireland was not a member of the Commonwealth, the quote from Costello's speech to the Canadian Bar Association about the 'inaccuracies and infirmities' of the provisions of the ERA, and his own research, which included an authoritative academic article by Nicholas Mansergh questioning the advantages to tire of continuing the use of the procedures of the External Relations Act (The Commonwealth experience (2nd edn) (Macmillan, London, 1982), vol. 2, p. 266, note 8). It is

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by him in a detailed memorandum,65 stated that after learning of the Sunday Independent headline he was faced with deciding whether to say 'No comment', to deny the truth of the headline, to admit its accuracy, or to say that the matter would be dealt with when the Diil reconvened. The 'decision' to make the surprise announcement to confirm the intention to repeal the ERA was taken by Costello after telephone consultation, though not with the agreement of the minister for external affairs, Seán MacBride.66

Two days later, on the morning of 7 September, at a press conference in the Railway Committee Room at the House of Commons in Ottawa, Costello recollected that Mr Mears, a Gazette Montreal correspondent, asked: '"Mr Prime Minister, is it your intention to promote legislation to repeal the External Relations Act?" My answer was "Yes it is".'67 The Gazette Montreal on page two reported that Costello had confirmed the intention to 'ditch' the ERA.68

IRISH AND BRITISH CABINETS' REACTION

The day following Costello's 'announcement', Sedn MacBride and William Norton drafted a bill entitled 'Transfer of certain powers and functions to the president'.69 The draft was returned by the Taoiseach's Department with a hand- written note which pointed out that the item did not comply with cabinet procedure in two respects, and presumed 'that the Taoiseach at least and possibly all other ministers would be concerned in the matter'.70 Certainly this memorandum above all else in the records illustrates the complete lack of planning for the implementation of the 'decision' to repeal the External Relations Act.

The patience of the British government was exhausted. On 10 September they decided that Rugby should inform MacBride 'orally' that 'in view of the attitude of the Eire government, the United Kingdom government considered that it would be embarrassing for Éire's ministers to be invited to attend the meeting of Commonwealth prime ministers'.71 The withdrawal of the 'invita- tion' to attend was effectively a cabinet decision to refuse to accept Éire's attempts to forge a new 'associate' status within the Commonwealth.

Shortly after his return to Éire, Costello called a 'caucus meeting' of the

worth noting, however, that Seen MacBride, in his capacity as minister for external affairs, did issue a copy of Costello's speech to the newspapers. His interpretation, however wishful, of the speech as sounding the death-knell of the External Relations Act would (if disclosed) have been close to an official acknowledgement that the External Relations Act was due for amendment.

65. A copy of Costello's memorandum was kindly lent by the former editor of the Sunday Independent, Hector Legge. See also M. Mclnerney, 'John A. Costello remembers', one of a series of interviews in The Irish Times, 8 September 1967.

66. Personal interview, Seain MacBride, 6 January 1987; personal interview, Professor Patrick Lynch, 22 December 1988.

67. Costello's memorandum, courtesy of Hector Legge. 68. Gazette Montreal, 8 September 1948. 69. NASPO S 14387, 8 September 1948. 70. NASPO S 14387, 9 September 1948. 71. PRO Cab 128/13 CM(48)50, 10 September 1948, p. 85.

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cabinet in his home,72 during which he offered his resignation.73 This offer was perfunctorily dismissed. On 11 October the full cabinet, in a decision which covered the 'announcement', approved 'the action taken by the taoiseach during his visit to Canada and the United States of America'.74

72. NASPO S 14311. Draft of cabinet minutes for 11 October 1948 asks whether 'the decisions are to be dated for Thursday, October 7'.

73. N. Browne, Against the tide, pp 129-30. In his book, Dr Browne recollects attending such a meeting shortly after John Costello returned from Canada, during which he (Costello) offered his resignation. Browne offered these revelations in 1976 as supporting evidence that there was no advance cabinet decision to make the announcement or to repeal the External Relations Act. Cabinet papers released several years later confirmed Browne's point.

74. NASPO Cab 2/10 G.C. 5/38, 11 October 1948.

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