No. 55 UCDA P35/184
London, 2 November 1926
The principle of the absolute equality of status and the legislative, judicial and constitutional independence of the members of the British Commonwealth of Nations is now admitted beyond controversy. It is accordingly thought that it would be opportune to direct attention to some of the more outstanding anomalies and anachronisms which appear most to detract from that principle with the object of abrogating anything which in form or substance interferes with its complete application in practice.
2. The fundamental right of the Government of each Dominion in the Commonwealth to advise the King in all matters whatsoever relating to its own affairs should be formally affirmed and recognised in practice.
3. The following are instances in which that fundamental right is contravened:-
|(a)||The claim of the British Government to control legislation of the other legislatures of the Commonwealth by means of the disallowance or reservation of the statutes of such legislatures.|
When the Secretary of State for Dominion Affairs receives each year or more frequently certified copies of Acts of the Dominion Parliaments, he requests the Governor General to inform His Ministers that His Majesty will not be advised to exercise His power of disallowance in respect of these Acts. Similarly, the reservation of statutes for His Majesty's pleasure implies action solely on the advice of His Majesty's British Ministers. Those powers of veto are obsolete and should be formally abandoned.
|(b)||The issue of exequaturs to Consuls operating within the Dominions on the advice of His Majesty's British Ministers with the counter-signature of the British Foreign Secretary.|
In the case of the consuls de carrière, the Dominions are merely informed that the exequatur is being issued. The approval of the Dominions is requested when an honorary consul is being appointed, but the exequatur issues on the advice of the British Ministers. The consular commission should be sent direct by the foreign Government to the Dominion Government, and the exequatur should be issued by His Majesty's Dominion Ministers countersigned by the Dominion Minister for External Affairs.
|(c)||The assumption in international treaties and conventions that the signature of the British plenipotentiary appointed on the sole advice of His Majesty's British Government binds the Dominions.|
The principle should be formally accepted that no Dominion can be bound in any way except by the signature of a plenipotentiary appointed on its own advice. When there is a common plenipotentiary for two or more members of the Commonwealth, separate full powers should be issued in accordance with this principle.
4. The Governor General at present fills a dual role. He is at the same time the representative of the King and the representative of the British Government, thus giving credence to a common misapprehension that there is no distinction in practice between the British Government and the King as far as the Dominions are concerned.
Furthermore, it is not in conformity with the principle stated in paragraph 1 of this memorandum that a Government chosen by the people should be affected in any of its actions by the representative of another Government. Accordingly, it is suggested that his functions should be confined exclusively to representing the King. He should act solely on the advice of the Dominion Ministry, and should not be the recipient of any instructions from the British Government. He should no longer discharge any functions as the representative of the British Government or of any Department thereof, nor act as the channel of communication between the British Government and the Dominion Government. The choice of the representative of The King should lie with the Dominion Government, on whose advice alone the appointment should be made. Similar principles should prevail when a change falls to be made in the holder of the office.
5. It has been sought to impose limitations on the legislative competence of the Members of the Commonwealth of Nations other than Great Britain, by insistence on the contention that the laws of such members - except where extra-territorial operation is given to them by the British Parliament - operate only within the territorial area of such member. Such a contention is inconsistent with the legislative autonomy necessarily following from equality of status. Moreover, it is nowhere expressed in any of the Constitutions of the States of the Commonwealth that there is any territorial limitation to the operation of laws duly enacted. It is obviously necessary in modern conditions that the legislatures of those States should exercise authority with extra-territorial effect when necessary for the peace, order and good government of their countries. It would be absurd, for example, to suggest that legislation making it a crime to conspire outside the Dominion against the peace, order and good government of that Dominion, or to defraud the customs of that Dominion or otherwise to violate its laws, would be invalid. It should be made clear that a law passed by the legislature of any part of the Commonwealth cannot be invalid or fail to have effect by reason merely of extra-territorial operation, or of the fact that its provisions are repugnant to the provisions of any statute passed by the British Parliament.
6. The exercise of legislative authority by the Parliament of Great Britain as regards the other members of the Commonwealth of Nations would clearly be inconsistent with the principles upon which the Commonwealth of Nations is founded. The very title of such an Act as the Colonial Laws Validity Act (which would appear from a recent judgment of the Judicial Committee of the Privy Council to be still of technical, legal effect in some parts at least of the Commonwealth of Nations) implies subjection, and the doctrines embodied in that Act are subversive of the principles of autonomy and constitutional co-equality.
No law can bind a Member of the Commonwealth of Nations except its own law, and the function of enacting every such law belongs exclusively as of right to the Parliament of such member.
Uniformity of laws and of administration of laws where desirable or necessary can best be secured by the enactment of reciprocal statutes based upon consultation and agreement.
7. The Royal titles are still as they were before the separation of the Irish Free State and the United Kingdom. For that reason, and in order to emphasize the dignity of the individual nations of the Commonwealth, it is suggested that these nations should be set out by name in the King's title, which would then read as follows: King of the United Kingdom of Great Britain and of Canada, Australia, New Zealand, South Africa, and the Irish Free State, Emperor of India.
In international treaties this title set out in full before, or in reference to, each one of the national plenipotentiaries on the advice of whose Government the King acts will remove all doubt about the equality of status of the Commonwealth nations, both inter se and vis à vis non-Commonwealth states, and will at the same time indicate the bond upon which the real unity of the Commonwealth depends.
9. The channel of Communication between Foreign Governments and the Dominions is still the British Foreign Office. It is clear from the text of Foreign Communications that Foreign Governments regard the Dominion Governments as subordinate to the British Government. This can best be illustrated by a recent and typical example. The Belgian Ambassador in London, in a letter to the British Foreign Secretary on the 30th of September last, concerning the issue of fresh exequaturs in respect of altered jurisdiction in the Irish Free State, writes as follows: 'Je me permets de recourir à l'obligeant intermédiarie de Votre Excellence aux fins que les titulaires de ces postes soient officiellement reconnus par les Autorités brittaniques dans la nouvelle juridiction qui leur a été confiée'.
In all matters concerning the Dominions as individual states correspondence should take place direct between the Departments of External Affairs of the Dominions and Foreign countries. The Members of the Commonwealth would, of course, keep each other informed of such correspondence in all matters of common interest in conformity with the spirit of the 1923 treaty resolutions.
Approval of this procedure should be intimated by the British Government to Foreign Governments.
If the British Commonwealth of Nations is to endure as the greatest factor for the establishment of peace and prosperity throughout the world, its cohesive force must be real and permanent, whether viewed from within or without. It cannot be held together by a mere collective expression, which only serves to create doubt in the minds of Foreign statesmen and discontent amongst the diverse nationalities of which it is made up.
The King is the real bond, and forms used in international treaties will be devoid of all meaning so long as they do not give complete expression to that reality.
The co-operation resulting from the bond of a common King will be effective only because it is free co-operation and to the extent to which it is free. Antiquated forms dating froma period when commonaction resulted from the over-riding control of one central Government are liable to make co-operation less efficacious, because they make it seem less free.
The Royal Irish Academy's Documents on Irish Foreign Policy series has published an eBook of confidential correspondence on the 1921 Anglo-Irish Treaty negotiations.
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