Letter from Seán Murphy to H.T. Andrews¹ (London)
(Confidential) (Copy)

My dear Andrews,

I have your letter of the 7th November regarding the question of the procedure with regard to documents to be executed by His Majesty in respect of the Irish Free State, and I apologise for not being able to reply sooner. The arrangement come to between our Government and the Government of the United Kingdom is set out in full in the telegram of the 18th March² referred to by you.

What actually happened was that a formal submission,³ copy of which is enclosed for your confidential information, was prepared by us here. Copy was sent through the High Commissioner to His Majesty's Private Secretary for the information of the King. Some days later at a formal audience the Minister presented the formal document of submission to His Majesty, who approved of same and placed his initials thereon and returned it to the Minister. As you will see from the submission it deals not only with the question of the use of the new seals, but also of the channel to be used in advising His Majesty in matters relating to the Irish Free State. You will notice that communication may be made direct to the King by the Minister for External Affairs or another Minister or through the High Commissioner in London. The reason for including the High Commissioner as a channel of approach was because the Government here were anxious to avoid the necessity of Ministers having to attend personally to tender advice. Normally speaking, in Great Britain advice is tendered to the King by means of a submission which is sent to His Majesty's Private Secretary for transmission to the King. The Minister tendering advice does not in the ordinary way seek an audience for the purpose of tendering such advice. Since the first submission of the 19th March we have advised the King to ratify the Treaty of Commerce with Portugal and to issue Full Powers to the Minister for the signature of the French Treaty and the Geneva Opium Convention. These, as you will see, are purely routine matters which would not justify the attendance of a Minister in order to tender advice with regard to them. Our practice is to draw up the submission here, send it to the High Commissioner, who sends it with a covering letter to the King's Private Secretary with a request that it may be placed before His Majesty. When the King has approved of the submission, which he does by signing 'Appd. G.R.I.' on the top of the document, it is returned to the High Commissioner by the Private Secretary.

Except on a question of extreme importance our Minister would not seek audience for the purpose of tendering advice. Where the advice to be tendered might need explanation, our practice would be to transmit through the High Commissioner to the King's Private Secretary an explanatory memorandum on the subject-matter of the submission.

I see from your letter that your Prime Minister is anxious that submission should be made direct to the King by the High Commissioner in London. The position with regard to your Ministers is entirely different from ours, on account of the distance, but it seems to me that you would perfectly safeguard your position with regard to the right of access as well as the right of formal advice if opportunity was taken by either the Prime Minister or some other South African Minister to lay a submission before the King personally, and to continue thereafter to use your High Commissioner in the same way as we are using ours. While the High Commissioner in London is undoubtedly the accredited representative of the South African Government, it can hardly be said that he is in a position analogous to a South African Minister, because after all in theory at least a South African Minister is appointed by His Majesty, and is therefore entitled to tender him advice in that capacity. The High Commissioner, on the other hand, is appointed by the South African Government, and is in no sense one of His Majesty's Ministers. We feel here that using the channel of the High Commissioner for transmitting submissions to the King is better from the constitutional point of view, because it places the King in a position similar to that in which he stands to His Ministers in the United Kingdom.

If you require any further information on this question, please don't hesitate to send me a note.

 

With kindest regards from my colleagues and myself to you and Naudé.⁴