Diplomatic Representation Abroad: Note to be sent to Foreign Governments

Report of Conference at Dominions Office, Downing Street, London

Present:-

Sir H. Batterbee, Dominions Office.

Mr. Seán Murphy, Assistant Secretary, Department of External Affairs.

Mr. John J. Hearne, Legal Adviser, Department of External Affairs.

Mr. Murphy and Mr. Hearne met Sir Harry Batterbee at the Dominions Office, Downing Street, on Thursday, 23rd May 1929, at 11 o'clock to discuss by arrangement the form of Note to be sent to a foreign Government on the establishment in its capital of the diplomatic representation by a member-State of the Commonwealth of Nations.

Sir Harry Batterbee opened the discussion by asking whether Mr. Murphy had seen the letter sent to the Secretary to the Department of External Affairs on Tuesday, the 22nd May, in which it was pointed out that the Canadian Government had been informed of Mr. Walshe's desire to insert the words 'At the instance of His Majesty's Government in (name of Dominion) and' at the beginning of the proposed draft Note. Mr. Murphy said he had seen the letter referred to.

Mr. Murphy stated that there were some other points raised by the draft Note which he wished to open to Sir Harry and that he would propose going through the Note paragraph by paragraph with a view to elucidating the matters he had in mind and reaching an agreement, if possible, as to the terms of the Note as a whole.

That course was agreed to.

Mr. Murphy

Mr. Murphy proceeded to read the draft Note through. He handed to Sir Harry the draft of the Note as 'proposed by Canada' and containing the opening words 'At the instance of His Majesty's Government in (name of Dominion) and' which it had been agreed between Mr. Walshe and Sir Harry to insert in that place. (A copy of the said draft is appended to this Report: see Appendix A). He adverted in passing to the insertion of the opening words. Having read paragraph 1 of the draft Note through, Mr. Murphy stated that no point arose upon it with the new opening words inserted.

     He then read paragraph 2. Turning to the last sentence in paragraph 2 he asked whether it was not an oversight that that sentence was retained in the draft Note as it then stood. It was quite understood, he said, that the words of the sentence, namely

would have been desirable had the preceding sentence in the paragraph been a mere statement to the effect that the procedure proposed denoted no departure from the principle of diplomatic unity. But, as the expression 'the principle of diplomatic unity' had now been defined in the said preceding sentence, it would appear to be consequential upon the insertion of the definition to delete the last sentence of the paragraph.

Sir Harry Batterbee

Sir Harry said that he should make it clear at the outset that he would find himself in great difficulty if any further change in the draft Note was sought. It had been agreed upon between the Secretary of State and Sir Austen Chamberlain, who had gone most carefully into the matter, and was in fact approved in its present form by the Cabinet. He (Sir Harry) now found himself without a Minister as, owing to the General Election, all the Ministers were in the country. What was he to do? He could not accept responsibility for altering the Note at all at that stage. He knew that the Government of the Irish Free State were most anxious to expedite this matter and they would, no doubt, appreciate that any changes now would take a long time to put through. He would have to get in touch with the Secretary of State and Sir Hubert Montgomery would have to get in touch with Sir Austen and as a result this most pressing matter (from the point of view of the Irish Free State and Canada) would be very considerably delayed.

Sir Harry then proceeded to explain what they had in mind when retaining the last sentence of paragraph 2. The idea was, he said, to give to the foreign Governments some indication of the sort of procedure that the new situation involved, some illustration, as it were, of what in actual practice would happen. That was all that was intended, and he thought the retention of the last sentence of the paragraph under discussion would secure that object.

Mr. Murphy

Mr. Murphy intervened to say that there were two constructions that could be put on the sentence. One, that just given by Sir Harry, namely that it was an illustration of what would happen when some dispute arose with a foreign Government. But was it necessary to explain to a foreign Government in a Note of this kind the internal machinery of the Commonwealth? It did not concern a foreign Government to know the internal arrangements by which the principle of consultative co-operation was put in practice as amongst the member-States of the Commonwealth themselves; it was in fact of no interest to any foreign Government. So long as a foreign Government knew of and understood the principle of consultative co-operation in so far as it affected that Government, the whole object of the Note was fulfilled. The internal and the external aspects of the principle should, he thought, not be confused; and, if the sentence under discussion was retained, he felt very strongly that such confusion must inevitably arise, not of course in the minds of the Governments of member States where the principle was understood and put in practice every day, but in the minds of foreign Governments who were now being informed for the first time in history in an official Note directed to them of this great new principle and what it meant so far as the external policy of the Commonwealth was concerned. Mr. Murphy went on to show how easy it would be for the misapprehensions he anticipated to arise. He took the instance of a dispute between any two member-States and, say, France. The Government of the French Republic had always previously communicated with His Majesty's Government through His Majesty's Ambassador. If the sentence under discussion remained in the Note, what would happen when the dispute referred to in the illustration arose? The Government of the French Republic would almost certainly take the view that the channel of communication between them and the member States concerned (neither of which was the United Kingdom) was His Majesty's Ambassador, the view, that is, that he was the person to approach in the first instance and that he would communicate with Ministers representing the member-States which the dispute exclusively concerned. That, Mr. Murphy submitted, would be what would happen as the method of setting the machinery of consultative co-operation in motion. If the sentence in question did not appear in the Note, it would be clear what the principle of diplomatic unity was and what it involved. That sentence, he added, threw confusion into the definition given in the previous sentence by seeming to be an amplification of the principle of diplomatic unity whereas it was not an amplification of the definition but an indication of how the principle would work in practice.

Furthermore, as an indication of the practical operation of the principle, precisely how helpful was the sentence under discussion? The sentence referred to two entirely different kinds of dispute, (1) a dispute in which 'all parts of the Empire' were concerned, and (2) a dispute in which two or more but not all the member States were concerned. The 'indication' did not distinguish the difference in practice which the extent of the dispute would require. The whole sentence seemed to suggest that all His Majesty's Representatives at a given capital should consult together as to the best method of dealing with a dispute which exclusively concerned two or more but not all of His Majesty's Governments.

Sir Harry Batterbee

Sir Harry assured Mr. Murphy and Mr. Hearne that nothing was further from the minds of those who inserted the sentence than the intention of causing confusion as to the position (Mr. Murphy intimated that, of course, that was fully understood and appreciated). The whole intention had been to explain in the Note itself the position as it would exist. It had not been anticipated that this Note would cause any controversy at all from the constitutional standpoint, but, unfortunately, every line of it had been most carefully scrutinized and difficulties were felt to arise in those parts of it which they in the Dominions Office felt to be safeguards of the views of all His Majesty's Governments. He felt that it would now be exceedingly wrong of him to hold out any hope of deleting the particular sentence in question altogether. If, however, it was felt that the words used did not convey the exact meaning which they all had in mind, perhaps it would be possible to agree upon some words which everyone could accept as being free from doubt and unlikely to create difficulty. He could not at all give any assurance that, even if words were found with which he personally could agree, it would be possible to have any change made. He repeated that he was without a Minister and that the Foreign Office was without a Minister, and that, in view of what had happened in regard to this particular document, namely, the importance which the Cabinet attached to the form in which it then stood, he was not free in the matter.

Mr. Hearne

Mr. Hearne adverted to the question of status. He said that he thought the constitutional position was at the root of the matter. It was being stated with increasing frequency that the member-States had not the status in the Commonwealth which was claimed for them. It was not necessary to emphasise status when speaking amongst themselves as they knew what it was and that it was in fact what it was claimed to be. But other countries were not perhaps so clear upon the point. Was it not essential that a document of this kind - an official Note in which a constitutional principle was defined - should be most carefully drafted in the light of that consideration. The Note was to communicate to foreign States that there was no new departure from a certain principle. That principle was given its accepted new definition in the Note. Should it not, therefore, be made clear exactly what that principle was to mean in practice if any reference to the practice was inserted at all. The Government of the Irish Free State would be glad, for the reasons given by Mr. Murphy, to see the entire sentence under review removed altogether. It confused procedure with one of the principles involved by the existing status and could be construed as in derogation of it. The 'definition sentence' spoke of general consultative co-operation. It could not be assumed that co-operation between two or amongst more than two member-States involved consultation by all. Yet that was what the sentence under discussion seemed to suggest. Besides, it went further. It suggested to the foreign Government that the principle now being defined for them for the first time involved the continuance of the existing diplomatic procedure and practice. He accepted Sir Harry's assurance that no idea existed of causing confusion, but could it be said that no confusion would not in fact be caused in the Note in its present form? If any indication was to be given to the foreign Government as to what would in fact happen when the principle of consultative co-operation was put into practice should it not make quite clear what the practice was going to be, namely, that where a dispute arose concerning all His Majesty's Governments, all His Majesty's representatives should consult, and that where a dispute arose which concerned two or more but not all of His Majesty's Governments, only those of His Majesty's representatives should consult whose Governments were concerned?

Mr. Murphy

Mr. Murphy then referred Sir Harry to a draft sentence which he said was drafted with a view to meeting the points made and with which he thought Sir Harry could, in view of what he had said, agree. (The draft sentence referred to is appended to this Report: see Appendix B.)¹

Sir Harry Batterbee

Sir Harry read the draft sentence submitted and stated that he would consult with Sir Hubert Montgomery. He added again that he was in a very great difficulty indeed, but would do his best in the matter. If Mr. Murphy and Mr. Hearne could return to the Dominions Office during the afternoon perhaps they could consider the matter again in the light of what Sir Hubert might have to suggest. Any other points that arose on the draft Note might be gone into now perhaps so that he would be in a position to consult generally with Sir. Hubert.

Mr. Murphy

Mr. Murphy then read paragraph 3 of the draft Note. He proceeded to discuss the last sentence in paragraph 3. His Government, he said, felt that that sentence was unnecessary. It was unnecessary, he said, for two reasons (1) because the Note was to be delivered by His Majesty's Ambassador, (2) because it was expressly stated in the body of the Note that the Ambassador was acting on the instructions of His Majesty's Principal Secretary of State. It could not, therefore, be felt by the foreign government that His Majesty's Government in the United Kingdom did not endorse the hope expressed in the Note on behalf of His Majesty's Government in the member-State by which the diplomatic proceeding was being initiated. The impression, moreover, which that sentence, should it remain - and he hoped it would not - would create would be that the benediction, as it were, of the Government of the United Kingdom was essential before a legation abroad could be established by any of the other Governments of the Commonwealth. Whereas, as Sir Harry of course appreciated, that impression would be a wrong impression of the position. If the general tenor of the Note were otherwise than it was and if the particular reference in it to which he had adverted were not there and if again the Note did not go through the present diplomatic channel he would not press for the deletion of this particular sentence; but having regard to all these circumstances he would hope to have it removed.

Sir Harry Batterbee

Sir Harry introduced his remarks on this point with the observation that in the matter of this particular sentence he was in greater difficulty than ever. This sentence had not appeared in the Note as submitted to the Foreign Secretary. Sir Austen himself had inserted it. Had inserted it for a very simple purpose namely to make clear to the foreign government that they in the United Kingdom were entirely in agreement with the proposal which was being made. Sir Austen, he said, wished to round off the Note courteously. He had no other intention - no arrière pensée - whatever. Sir Harry beseeched Mr. Murphy to please understand that that was so. Sir Austen had been approached time and again by the Japanese Ambassador in London in regard to the proposed appointment of a Canadian Minister to Tokio to ascertain our attitude. Mr. Murphy would recall the recent negotiations at Rome. During these negotiations - and after - the Cardinal Secretary of State had over and over sought the assurance of the British Minister that His Majesty's Government in the United Kingdom were in agreement with the proposal to establish an Irish Free State Legation at the Vatican. Sir Austen's whole and only idea was to add words to the Note - which seemed formal and bald as submitted to him - that would remove any vestige of doubt that we were in complete agreement with and fully supported the proposal made in the Note. Nothing was further from mind than the idea of creating the impression that the action of the Government in Great Britain was necessary to complete the transaction. What was he (Sir Harry) to do? Here was a most earnest attempt by the Foreign Secretary himself to express our full agreement with what was being done? Sir Austen had, moreover, in mind the idea of dissipating any notion that the Note was 'wrung from us' as it were by the Dominions. That was his simple direct way of doing it and it was never for one moment anticipated by him that he was inserting words that would cause the slightest difficulty as to his intention or the smallest doubt as to the position. How could he (Sir Harry) undertake to alter these words or, what would in the circumstances be more difficult to justify to Sir Austen, remove them altogether. Surely he was in the greatest difficulty imaginable.

Mr. Murphy

Mr. Murphy urged that as Sir Austen's object in inserting the words was to make clear the full accord of the Government there with what was being proposed Sir Austen's object could be secured quite as effectively in another way. The assurance of His Majesty's Government in the United Kingdom could be given verbally when the Note was being delivered. That would remove any impression that what was being sought had not the full agreement of that Government.

Sir Harry Batterbee

Sir Harry again repeated that his difficulty was the absence of Ministers and the urgency of the whole matter so far as the Irish Free State and Canada were concerned. He would, however, discuss this point with the points raised on the sentence in paragraph 2 with Sir Hubert and said that we could resume when he heard Sir Hubert's views. Mr. Murphy and Mr. Hearne would please accept his assurance again that there was no motive whatever in inserting the last sentence of the Note save courtesy on the part of Sir Austen.

This ended the morning meeting. It was agreed to resume at 4.30 p.m. on that day. The methods of dealing with matters which may arise concerning more than one of His Majesty's Governments would be settled by consultation between the Representatives of His Majesty's Governments concerned.

V

Appendix A: Draft as now proposed by Canada

Your Excellency,

At the instance of His Majesty's Government in (name of Dominion) and under instructions from His Majesty's Principal Secretary of State for Foreign Affairs, I have the honour to inform you that His Majesty's Government in (name of Dominion) have come to the conclusion that it is desirable that the handling of matters at (name of foreign capital) relating to (name of Dominion) should be confided to an Envoy Extraordinary and Minister Plenipotentiary accredited to the (name of foreign country) Government.

2. Such a Minister would be accredited by His Majesty the King to the (name of Head of foreign State) and he would be furnished with credentials which would enable him to take charge of all affairs relating to (name of Dominion). He would be the ordinary channel of communication with the (name of foreign country) Government on these matters. The arrangements proposed would not denote any departure from the principle of the diplomatic unity of the Empire that is to say the principle of consultative co-operation amongst all His Majesty's Representatives as amongst His Majesty's Governments themselves in matters of common concern. The question of the best method of dealing with any matter which may arise concerning more than one of His Majesty's Governments or all parts of the British Empire would therefore be settled by consultation between His Majesty's Representatives.

3. In proposing the establishment of a (name of Dominion) Legation His Majesty's Government in the (name of Dominion) trust that it will promote the maintenance and development of cordial relations not only between (name of foreign country) and (name of Dominion) but also between (name of foreign country) and the whole British Commonwealth of Nations. I have the honour to add that His Majesty's Government in the United Kingdom of Great Britain and Northern Ireland fully endorse the hope expressed on behalf of His Majesty's Government in (name of Dominion).