Preliminary note on the 1930 Imperial Conference by the Department of External Affairs
(Secret and Confidential) (Copy)

IMPERIAL CONFERENCE

Preliminary Note

AGENDA

At opening meeting on 30th September short speeches by all the Heads of Delegations. The British propose that these speeches should be broadcast. Although the opening speeches have in the past been published in the press, broadcasting rather suggests an attempt to put the Conference violently on the stage of British party politics.

DETAILS

The South Africans have suggested the following items:

The first five items could have been brought up at the Conference under I(c) of the General Agenda suggested by the British, which fortunately gives full scope for discussing every conceivable aspect of our Intra-and Extra-Commonwealth position. Notwithstanding the comprehensive character of the Agenda the Minister will suggest the addition of at least one definite item, namely 'The Relations between His Majesty, the King, and the Governments of the Member States of the Commonwealth other than His Majesty's Government in Great Britain'. The use of the British Government as a channel of approach to the King is a source of much confusion in our constitutional relationships. As we said in our Memorandum to the Twenty-Six Conference,¹ the King and the British Government are one as far as the Dominions are concerned. The King is a constitutional monarch in the fullest sense in relation to Great Britain because he acts only on the advice of the elected representatives of the people. In relation to the Dominions he is almost an absolute monarch acting on the effective advice of advisers entirely outside the control of the electorates of the Dominions.

Exequaturs, Full Powers, Commissions for Consuls are issued under seals released by a formal executive act of a British Minister. The entire machinery for the performance of these acts of State on behalf of the Dominions is within the absolute control of the British Government.

The British Commonwealth remains an organic unit vis-à-vis the external world so long as the machinery of ultimate control in regard to external relations is centred in the British Government. At the present moment the only external relations which entirely escape British machinery are of a purely technical character, and are manifested through certain League and Postal Conventions. The defective channel of access is at the root of all the difficulties in the way of the external self-expression of the Dominions and we must be ready to suggest an immediate practical remedy. The obvious solution is to substitute the Governor General for the King in the totality of his functions, but as that step would remove all ambiguity as to the 'Personal Union' character of the bond between the Nations of the Commonwealth, it would perhaps be too much to expect the British to accept it at this stage. As a transitional measure, the High Commissioner could convey to the King the advice of the Government concerned. A special form signed and sealed by the Minister for External Affairs and stating the act which the King is advised to perform, will have to be adopted for the purpose.

There can be no objection to the King using a special personal seal, but no State seals may be used on any document or in connection with the issue of any document other than the State seals of the Government concerned. It is not unlikely that the British may counter-suggest a Secretariat in Buckingham Palace consisting of a representative of each Dominion, who should take the place of the High Commissioner in our scheme. From the British point of view the Buckingham Palace Secretariat would have one clear advantage. The present direct control and unlimited power of delay held by the Dominions Office in relation to external matters on which the King is being advised through that Office, would no doubt be eliminated, but the members of the Secretariat could not help being influenced by their surroundings and the inevitable growth of a corporate spirit to the point of being dominated by the British outlook. Delay and referring back with strong recommendations to change or modify would still be possible. However, that might not be an unmixed evil, and the Secretariat, provided it were prevented from becoming an imperialising organ, would have immense constitutional advantages over the present position. In either scheme the representative would be a substitute for the Minister concerned, whose right of access at all times should remain unimpaired.

While recognising that the form of our relations with the King governs our external position more than any other factor, we are giving special attention to (1) Nationality, (2) Treaties and (3) the Intra- Commonwealth Court.

1. Nationality² - Our object is twofold, to eliminate the description British subject and to obtain for Irish, Canadian, Australian, etc., Nationals as such, the recognition, rights and privileges at present attaching to British subjects. The general principle was vaguely admitted at the 1929 Conference. A Nationality Bill is being prepared as the most practical basis for discussion.

2. Treaties³ - Apart from the forms connected with the issue of Full Powers and Ratification, there are other factors in the existing procedure which require altering. The inter se doctrine, the accession clause inserted by the British into all their treaties as though they had some inherent right to act for the Dominions, and the granting of privileges to - or the acceptance of obligations for - all British subjects in treaties made by the British are elements in our international position which make it extremely difficult for us to claim that we possess real international status.

3. The Intra-Commonwealth Court-While, for strictly inter-Governmental disputes a Tribunal might be good in itself, for the moment we must regard it as a purely political expedient for getting rid of the Privy Council.

The Privy Council is obnoxious because it is an Extra-State institution exercising judicial control over the internal affairs of the State without any form of democratic sanction. It is, furthermore, the only operative Imperial institution which can be said to make of the Commonwealth a legal and constitutional unit, as distinct from the Diplomatic Unit created by the unified control of the King's external acts.

It is, therefore, of the first importance to ensure that the jurisdiction of the new Court be strictly limited to the settlement of inter-Governmental disputes which the Governments concerned shall have failed to settle by diplomatic means. There must be no single persisting Court. Its mere persistence might encourage an enlargement of its functions and an encroachment on matters internal to the individual States of the Commonwealth. But there is no reason - if tactics dictate such a course at the Conference - why we should not suggest a whole series of panels for Courts to come into existence only in the contingency mentioned. Thus the Saorstát and Great Britain could agree to appoint five members on a panel constituted as follows: Great Britain and the Saorstát would each chose one member from its own country, one member from another State of the Commonwealth and both together would select the fifth member likewise from another State of the Commonwealth. Canada and Great Britain, the Saorstát and Canada, etc., would all select their panels in similar manner. This method is that followed in the American conciliation treaties. It has the advantage of giving a definitely equal share in the constitution of the Court to the potential disputants, and of allowing the Court to operate within a reasonable space of time.

Anything in the shape of a permanent Court would be dangerous for us. The British could hardly fail to use it for the purpose of maintaining control or enforcing their views on constitutional matters, and even though mutual consent in each case were a condition precedent to acceptance of the Court's jurisdiction, we might find ourselves forced into a position of isolation by a series of constitutional decisions accepted by the other Members of the Commonwealth.

The Privy Council must disappear and is already decaying because of its inherent incompatibility with the constitutional evolution of the Commonwealth and it need not cause us serious anxiety. But any single permanent Court, or any single permanent panel appointed for setting up an ad hoc tribunal is a danger for us because five-sixths of its membership and considerably more than five-sixths of its operations would be completely independent of our will. No matter what form its original constitution might take, we could not prevent its being moulded to the will of the most powerful member of the Commonwealth.