Note by Sir Edward J. Harding of a conversation with Joseph P. Walshe

NOTE OF CONVERSATION WITH MR. WALSHE, 29TH OCTOBER, 1932

In accordance with the arrangement made yesterday, Mr. Walshe called again this morning and had a further two hours' talk with Sir Harry Batterbee and myself, on the same personal and non-committal basis as before. He brought with him two documents:

(a) containing the outline of an agreement containing or implying the extreme limits of the concessions which, in his opinion, he could reasonably ask Mr. de Valera to accept. This is attached as Appendix A.¹

(b) containing his personal opinion on the question of negotiations on the specific question of the Oath. This is attached as Appendix B.²

The first Article of the first document (i.e. what may be described as the 'political' article) contained, in its original form, a reference to the settlement by friendly consultation and agreement of all future differences between the two Governments. We pointed out to Mr. Walshe that, in our view, the presence of the word 'future' would be a quite insuperable objection to this Article, since in this form the Article would not cover the primary difficulty, i.e. the Oath Bill. (Mr. Walshe later modified the document so as to omit the word 'future'.)

We further pointed out that the suggested reference to Ireland as 'occupying a special position in the association known as the British Commonwealth of Nations' would, we thought, be quite impossible from the point of view of the Government here, since it would derogate from the position of the other Dominions and, in effect, mean re-writing the Declaration of the Imperial Conference of 1926. Mr. Walshe, on the other hand, strongly emphasised that the recognition of Ireland as a ?Mother country' would have great sentimental value in the Irish Free State, which resented anything which seemed to put it in the position of an 'elevated colony'.

We then explained to Mr. Walshe that, quite apart from any question of form, the 'political article' and his Memorandum on the question of the Oath seemed to us to raise the fundamental issue between the two Governments. Mr. Walshe agreed. We proceeded, therefore, to discuss whether there was any possibility of reaching agreement on this fundamental issue.

Sir H. Batterbee and I represented as strongly as we could that the whole of the policy of the United Kingdom Government, both Imperial and international, was directed to the maintenance of the principle of the sanctity of agreements. We said that we felt that there was no real prospect of reaching agreement unless, in some manner or another, Mr. de Valera could be induced to accept this principle. Mr. Walshe frankly admitted that, in his view, Mr. de Valera had gone the wrong way to work over the Oath question; he emphasised, however, the great difficulty which Mr. de Valera was likely to have in overtly recognising that he had taken a wrong step. He also represented that there was the further difficulty, as regards the Oath, that its continuance was regarded in all parts of the Irish Free State as a method of control by the United Kingdom Government.

On this latter point, we said that this was certainly not the view held here: surely the United Kingdom Government had sufficiently demonstrated, by the events of the last few years, that they had no desire to exercise control. The United Kingdom Government took the position that Mr. de Valera's action with regard to the Oath Bill was a breach of the Treaty, under which the Irish Free State was constituted as a Dominion, and we did not think that they could possibly agree to any modification of the Articles relating to the Oath which was not based (a) on the recognition that any modification of the Articles of the Treaty was a matter for consultation and agreement between the two Governments, and (b) on acceptance of the position of the Irish Free State as a co-equal member of the Commonwealth and of the relationship existing between the King and each member of the Commonwealth.

Finally it was agreed between Mr. Walshe and ourselves that no satisfactory progress could be made with the drafting of any 'political' article unless Mr. de Valera were in a position to give to the United Kingdom Government privately an affirmative answer to the following questions:

'Would Mr. de Valera agree to say to the United Kingdom Government that he would regard any modification of the Articles of the Treaty as a matter for consultation and agreement between the two Governments, and would he further agree to say that he would not proceed with the Oath Bill without consulting with the United Kingdom Government with a view to discovering how best to reconcile any modification of the relevant Articles of the Treaty with the position of the Irish Free State as a co-equal member of the Commonwealth and with the relationship existing between the King and each member of the Commonwealth.'

Mr. Walshe undertook to convey this question to Mr. de Valera, and to let us know within the next few days, after discussion with him, what the position was with regard to it.

N.B. It may be mentioned here that, at the end of the conversation, Sir H. Batterbee and I put directly to Mr. Walshe the question whether, having regard to what we had told him as to what we had every reason to know was the feeling of the Secretary of State with respect to the Oath, he personally thought that it was worth while to proceed with our discussions. He answered, 'Yes'.

On the supposition that the reply to the question to Mr. de Valera set out above was in the affirmative, it was felt that the following seemed to be a suitable basis for the first article of any new agreement.

Article 1 should contain the recognition that Agreements made between the two Countries can only be altered by agreement and in accordance with the position of the Irish Free State as a co-equal member of the Commonwealth and with the relationship existing between the King and each member of the Commonwealth.

Before turning to the second and third articles of Mr. Walshe's 'outline', the discussion went back to the question of the acting Governor-Generalship which we had raised with Mr. Walshe on the previous day, in view of point 3(b) of the memorandum which we had been authorised to communicate to him. Sir H. Batterbee and I indicated that, in our personal view, it would be regarded here as an 'earnest of good will' if arrangements could be made, to take effect on Mr. McNeill's relinquishment of office, which would be in strict accordance with the Treaty, and the constitutional propriety of which would be beyond doubt.

Was it, we asked, quite certain that the Chief Justice of the Irish Free State would not be willing to assume the administration?

Mr. Walshe suggested that Mr. Kennedy's ?conscientious' motives might be in a large measure political. Possibly he was not indisposed to a course which might help Mr. Cosgrave, and apart from this, it was quite likely that he conscientiously objected to being even a nominal party to action by Mr. de Valera's Government of which he might strongly disapprove.

Mr. Walshe said that he personally had no doubt that the best solution was (as he had told us yesterday) a Commission of Three. He made it clear, however, that he intended to put to Mr. de Valera again the question of securing, as a temporary measure, the acting appointment of the Chief Justice.

Mr. Walshe further alluded to the question of the Commissions and Exequaturs in Erse³ which the King had so far refused to sign.

Mr. Walshe stated that when Mr. de Valera had suggested that preparation of these documents in Erse, and the striking of a special copper plate for them at considerable cost, he (Mr. Walshe) had been extremely pleased. He felt that Mr. de Valera would not have gone to this trouble and expense unless he had intended to continue the practice of submitting documents for the King's signature.

Mr. Walshe feared that, if Mr. de Valera were once told (so far he had not been told) that the King was unwilling to sign, the effect on Mr. de Valera's mind would be very bad. He (Mr. de Valera) would feel this was action as a reflection on the Irish language and culture. It was difficult for an Englishman to appreciate how intense the feeling for the Irish language was.

Sir Harry Batterbee and I put (as a personal reaction of our own) the point made by the Attorney-General, viz. that a document is void or voidable in law if it is not understood by its signatory. Mr. Walshe appeared to think, however, that this point was met by the translations which Mr. de Valera supplied.

Mr. Walshe begged us to ascertain whether it would not be possible for the King to reconsider his view. Obviously he felt that there should be no difficulty in complying with safeguards to meet the point that the King could not understand the Irish language, and that he could not be expected to sign a document in a language which he did not understand. But he obviously felt also that the requirement of a single document in Erse and English was not one which Mr. de Valera would find acceptable. Mr. Walshe took the point that documents accrediting foreign Consuls were often sent to the King in foreign languages which quite clearly he could not understand.

Mr. Walshe represented most strongly that compliance with Mr. de Valera's wishes in this matter might have an effect on his general relations with the King quite disproportionate to the particular matter at issue.

Sir Harry Batterbee and I said that we could only take note of Mr. Walshe's view on this point. We gathered that, for the time being, action would be deferred as regards explaining to Mr. de Valera the attitude taken up by the King.

The conversation then went on to Article 2 of Mr. Walshe's 'outline' (i.e. that dealing with the financial burden of the Irish Free State).

As to this Article, Sir H. Batterbee and I repeated what we had said to Mr. Walshe yesterday,⁴ viz. that we had no authority to discuss figures. These, we said, would necessarily have to be settled by Ministers. We also indicated that the suggestion in this Article that no part of the sum due should be paid outside the Free State was not one which we could discuss with him.

We said, however, that we thought that it would be essential, from the point of view of the United Kingdom Government, to base any mitigation which might be made on the present economic position of the Irish Free State.

This led to the suggestion that the existing depression might quite possibly be temporary only, and we had therefore an opportunity of emphasising that, in considering the question of making any mitigation of the present burden, a smaller payment for a longer period of years would be one of the methods which would need examination.

Mr. Walshe made it clear, however, that a substantial reduction of payments formed an essential part of the scheme which he had in mind.

On the question of the third Article of Mr. Walshe's 'outline' (viz. the negotiation of a trade agreement) Sir H. Batterbee and I asked Mr. Walshe what he had in mind.

His reply was that he contemplated an agreement between the United Kingdom and the Irish Free State on the lines of those made at the Ottawa Conference, under which Irish Free State agricultural produce would get the benefits of free entry into the United Kingdom and also Ottawa terms, and in return the Irish Free State market would be secured to some lines of United Kingdom manufactured goods, e.g. motor-cars. We took note of what he said, and mentioned in this connection - making it clear that we only did so as a point to be borne in mind - that the problem of meat production was, as he knew, causing considerable concern here, and that it might be necessary to take this into special consideration in framing the details of a trade agreement.

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Mr. Walshe, before leaving, repeated what he had said to us yesterday, viz. that in his view it was essential that informality and secrecy should be preserved until the latest possible moment, if the discussions were to have any chance of success.

His idea, we gathered, was that all the articles of any new general agreement should be negotiated informally, and that the drafting of its provisions should be brought to a stage where Ministers were, in effect, prepared to approve them, before formal negotiations between the two Governments were recommenced.