No. 81 NAI DFA Unregistered papers
London, 8 July 1932
Sir Harry Batterbee joined Mr. Machtig1 and Mr. Hearne at tea. After tea Sir Harry Batterbee said that he would like a few minutes' private conversation with Mr. Hearne. Mr. Hearne and he then went to the next room, and Sir Harry proceeded at once to express his views on the general political situation between the two countries.
He said that everybody connected with official life in the Dominions Office had been very much hurt by the treatment the British Government had received at the hands of the new Irish Free State Government. The attitude of 'declining to discuss' the Oath of Allegiance was quite unprovoked and uncalled for. But the real gravamen of the existing situation was not this particular difficulty or that particular difficulty, it was the background of the situation, the fundamental unsettling of things that had been regarded as settled, the tendency behind all the particular points at issue to put an end to the basis of the existing relations between the two countries. That was the fact which made the handling of particular issues so difficult. One felt the hopelessness of dealing with this or that dispute so long as the main position was not definitely settled. The British Government had made up their minds to go on with the economic measures contained in the Bill before Parliament. He personally felt that the Irish people themselves would have to decide in one way or the other the fundamental question of the continuance of the Irish Free State in the British Commonwealth. It would be for them to say after experience what their decision was to be. It all came to that in the end.
Mr. Hearne said that he had no authority to go into the general position or to discuss the particular issues, e.g., the Oath or the Land Annuities. But as a purely personal opinion he would like to say to Sir Harry Batterbee that he had always regarded the Privy Council issue as a test issue, a test of the reality of Commonwealth Conference declarations. He had expressed a certain view to Sir Edward Harding previously when Sir Edward was in Dublin with Mr. Thomas. He would repeat it now. It was this. If those whose duty it was to carry out the directions of successive Governments had been able to say to President de Valera when he took office that the Privy Council had been regarded by the British Government as a Treaty issue just as the Oath was now so regarded by the British Government, but that the Privy Council issue had been settled by agreement without any difficulty whatever because of the wishes of the Irish people in the matter, what a difference that might have made. But what had been the position? The President had to be told - if indeed he had not known it already - that negotiations lasting over years had been a failure, and that an absurd interpretation of the Treaty was solemnly advanced over and over by successive British law officers to defeat the Privy Council policy of the Government and people of the Irish Free State.
Take the present situation with regard to the land annuities. The government of the Irish Free State had accepted the principle of arbitration as a method of settlement. The two Governments were definitely agreed on that; they had not agreed on the method of constituting the arbitral tribunal. But in that state of facts the British Government brought in an Import Duties Bill against Irish Free State goods and produce. While discussion of ways and means of arbitration - the principle already accepted - was going on this Bill was introduced. It would be difficult to find an instance of mishandling of a difficult situation so extraordinary as that. If the Irish Free State were outside the British Commonwealth, what measures worse than that could be taken against it by Great Britain? We all had enough experience of international life and intercourse to know that when the principle of arbitration is decided upon with regard to a dispute between two countries repressive action is stayed by both parties. But the Special Duties Bill had a more serious aspect still. It amounted to a use or threatened use of economic force to compel the Irish Government to agree to a certain type of tribunal, a certain method of choosing the members of the tribunal. That was bad for the progress of negotiations on that particular matter and bad for the Commonwealth as a whole. It was a bad precedent to establish. Years had been spent seeking an acceptable formula to express the nature of the association existing amongst the States of the Commonwealth. No satisfactory formula had yet been found. Most of the external political problems of States generally were economic problems. The same was true of the States of the Commonwealth. The future relationships between them were, if the Ottawa Conference succeeded, going to find their real expression not in constitutional fictions but in economic realities. On the eve of Ottawa the British Government bring in a Bill the principle of which cuts across the whole idea of economic co-operation simply because the Government of the Irish Free State decline to regard a paragraph in the Report of a Commonwealth Conference as the edict of a super-Parliament. Sir Harry would recollect that at no time did any Irish Government regard the Reports of Commonwealth Conferences in that way; he would recollect that they had always insisted that these Reports did not create developments but only recorded them, and, indeed, did not record them all. Surely there was nothing in the Report of 1930 which prevented two Members of the Commonwealth from agreeing on any Court of Arbitration they desired. They might refuse to agree upon a court other than what is called a Commonwealth Tribunal, but the party insisting upon that Tribunal should not do so as if it was an essential part of the make-up of the Commonwealth. That argument had no force. Suppose the Irish Free State Government had cited the British Government before the Permanent Court?
Sir Harry Batterbee: 'We would not have appeared.'
Mr. Hearne: 'Suppose we had asked you to go to the consent jurisdiction?' (as distinct from the compulsory jurisdiction).
Sir Harry Batterbee: 'We would have refused.'
Mr. Hearne: 'Very well, then; let us consider that position. You say that the people of the Irish Free State must decide the question of membership of the Commonwealth. What considerations will operate in their minds when taking that decision? You know that since the Treaty was signed they have been assured that membership of the Commonwealth in no way derogates from the substance of international Statehood. If you steadily decline to accept that situation, if you insist that membership of the Commonwealth does derogate from Statehood and does deprive the members - other than Great Britain - of certain elementary international rights, what decision do you think the Irish people will take? I could understand the British point of view if it was this: 'We signed the Optional Clause with Reservations: those Reservations removed disputes with other Members of the Commonwealth from the compulsory jurisdiction of the Permanent Court: therefore we will not agree that this or that dispute should be tried out there: you say however that our Reservations were bad, well let the Court decide, we will appear and argue the question if the Irish Free State cites us there.'That is an understandable point of view. But you do not say that: you say 'We will not go to the Permanent Court at all'.'
Sir Harry said that the Commonwealth Tribunal would be insisted upon: it was fundamental.
Mr. Hearne said that in his view that was a mistake. If the Irish Free State had any international existence at all it was entitled to an international tribunal to arbitrate an international financial issue. That was all President de Valera's contention came to, and surely it was reasonable. Was the half- worked-out idea of a Commonwealth Tribunal going to be set up as a sort of judicial Constitution of the British Commonwealth? That would be an impossible situation. The existence of the Commonwealth in the future would depend upon the very fact of its having no judicial or other Constitution of any kind.
Sir Harry Batterbee then returned to the question of the discussions in 1931 on the question of the Privy Council. He said that they in the Dominions Office could not understand why it was that after the discussions in the month of -------2 the matter was dropped. 'A definite situation had been reached,' he added.
Mr. Hearne: 'A very definite situation: the offer of the Bushe3 draft which said nothing about the Privy Council as the British alternative to a draft which abolished the appeal in express terms. That was a definite situation. What was the use of going on?'
Sir Harry said that the British Government clearly intended the Bushe draft to be a draft which would enable the Irish Free State Government to carry out its proposal to abolish the appeal, and that the British would have had no objection had that been done.
Mr. Hearne said it was a pity that that had not been stated so definitely last year. Mr. Bushe's statement had been that his draft would put an end to the sort of argument used against the Irish Free State at the Commonwealth Conference, 1930, by Sir William Jowitt;4 that it would, in other words, be impossible to say in the future, if his draft were accepted, that the status of the Irish Free State was legally defined and fixed in 1921. But the draft had nothing to do with the Privy Council, and the object of the discussions in 1931 was to frame a draft Agreement the first and essential Article of which was to abolish the appeal in express terms. Instead, the Irish representatives were offered an Article which would merely prevent the repetition of an absurd legal argument by the Attorney General for England. And in order to prevent the repetition of that absurd legal argument the Government of the Irish Free State were to come down to the Dáil with Mr. Bushe's draft (or Sir Stafford Cripps'5 as it in fact turned out to be) and say: 'We have now got an evolving status, the status of Canada not as it was in 1921 but as it is from time to time.' Why for ten years the Dáil had understood that that was the position. Or rather they had understood that the Irish Free State had left Canada behind in the matter of status and evolution.
Sir Harry Batterbee smiled and said: 'Anyway in 1931 we had thought that you could have abolished the appeal on the basis of the Bushe draft.'
Mr. Hearne said that the hopes of Sir Harry would be realized soon even without the Bushe draft.
Sir Harry: 'Oh yes, of course, you now have the Statute of Westminster.'
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