No. 423 NAI DT S6009/1

Letter from Patrick McGilligan to J.H. Thomas (London)
(D.5829/4) (No. 233) (Secret)(Copy)

Dublin, 12 September 1930


I have the honour to refer to my Confidential Despatch of the 11th July1 concerning the Agenda for the Imperial Conference, and to inform you that His Majesty's Government in the Irish Free State, while considering that the principal points which they wish to have specially considered at the Conference could be discussed within the general headings of the proposed Agenda, feel nevertheless that His Majesty's Government in Great Britain may desire to have some definite indication before hand as to what these points are. They are set out in the following paragraph:-

2. 1. Appeals to the Judicial Committee of the Privy Council.
  2. The right of direct access to the King by all his Governments.
  3. The position of the Members of the Commonwealth in relation to treaty-making, with special reference to the 'inter se' application of treaties.
  4. Communication between His Majesty's Governments other than the British Government and foreign Governments.

3. The view of His Majesty's Government in the Irish Free State on the Judicial Committee of the Privy Council has been frequently stated. The existence of an extra-State institution claiming without any form of democratic sanction to exercise jurisdiction in the matter of the internal affairs of the Irish Free State remains a menace to our sovereignty. This exercise of jurisdiction constitutes one of the greatest obstacles to the acceptance of the Commonwealth position by a very large number of the citizens of the Irish Free State, and it renders more difficult the growth of that close and friendly co-operation between Great Britain and the Irish Free State which is so strongly desired by all the Commonwealth peoples. It is accordingly the intention of His Majesty's Government in the Irish Free State to make known to the delegates of His Majesty's other Governments their desire that the wishes of the majority of their people in the matter of applications for leave to appeal to the Judicial Committee should be carried out.

4. The right of the Government of each Member of the Commonwealth to advise the King is at present exercised through the channel of the Dominions Office and the Foreign Office. This practice has in fact created an impression that the effective advice in matters relating to the Member of the Commonwealth concerned is that of the British Government. The attendant procedure involves the executive act of a British Minister and the affixing of a seal controlled by a British Minister. The British Government thus act as a barrier between the King and his other Governments and prevent the normal functioning of the constitutional relations which should exist between them and him. The King being cut off from the Governments of the Members of the Commonwealth and accessible only through the British Government, becomes so identified with the latter that it is impossible for the other Governments to distinguish where the functions of the British Government end and those of the King begin. In other words, whereas the Monarchy in relation to the United Kingdom is strictly constitutional, in relation to the other Members of the Commonwealth it has no existence distinct from that of the United Kingdom Government and is accordingly a very different institution. The resulting position is not merely a constitutional anomaly providing the text-writers with arguments against co-equality of status, but it is also calculated to lead in time to a lessening of the prestige of the Monarchy amongst the Members of the Commonwealth and a consequent weakening of the bond joining those Members together. His Majesty's Government in the Irish Free State, therefore, consider that the other Commonwealth Governments should be brought, in practice, into the same relationship with the King as the United Kingdom Government. As the procedure of advising must be entirely within the control of the Governments concerned, it is suggested that the High Commissioner should be used by the advising Minister as his substitute whenever it is impossible for that Minister to go to London for the purpose of tendering the advice. The adoption of this procedure - and it seems to be the most practicable - will entail the granting of a special position of dignity to the High Commissioners.

5. The 'inter se' Statement contained in the Report of the 1926 Conference has given rise to a misconception of the international position of the Members of the Commonwealth of Nations. The reference to the statements made at the Arms Traffic Conference clearly implies that the nations of the Commonwealth constitute a single sovereign State. The application of treaties as between the Members of the Commonwealth is a question of convenience, and should depend on mutual co-operation. By agreement amongst themselves the Members of the Commonwealth can declare at the time of signing a treaty in which such a reservation can properly be made that it shall not apply 'inter se'.

6. Communication between the Members of the Commonwealth and foreign countries takes place through the British Foreign Office except in the few cases where the Governments of other Members are represented by Ministers Plenipotentiary. The system is very slow, and it gives foreign Governments the impression that the British Government acting through the Foreign Office in London is the supreme authority in the international relations of the other Members of the Commonwealth as if the Commonwealth were a Federal State. Invitations and communications of all kinds to the Governments of the other Members of the Commonwealth become mere addenda to a document addressed to His Majesty's Government in the United Kingdom. There is in the system an element of tutelage and want of trust unworthy of the position of co-equality of all the Members of the Commonwealth. It is therefore proposed that the Governments of those Members which have no representative in a particular foreign State should address their communications to the British representative for transmission to the foreign Government. The reply, or any form of communication other than a reply, would be sent direct by the British representative to the Commonwealth Government concerned. As it is only proper that every Government should be fully informed of their representative's activities, it is suggested that a copy of the communication addressed to the Minister Plenipotentiary could be sent by the same post to the Foreign Office. The Minister Plenipotentiary would likewise forward a copy of communications received by him to his own Government.

7. His Majesty's Government in the Irish Free State believe that the elimination of the foregoing difficulties at the Conference will allow the delegates to examine with freer minds the important economic problems which are listed for their consideration.

I have the honour to be,
Your most obedient, humble servant,
(Sgd.) P. McGilligan

1 Not printed.

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