Letter from John J. Hearne to Charles T. te Water (London)

My dear High Commissioner,

Will you please forgive me for not having sent you a note as to our views on the Regency question before today. The summoning of the Assembly for Wednesday made it impossible for me to send you a letter from Dublin, as I had hoped.

The fundamental question arising on the Regency issue is, in our view, as follows: whether any of the functions of the King could be legally or constitutionally exercised in respect of the internal or external affairs of any of the States of the Commonwealth (other than the United Kingdom) by a regent or Counsellors of State acting on the authority of a statute of the United Kingdom Parliament. Our view is that if the statute of the British Parliament is assented to by any of the States of the Commonwealth which can constitutionally request and assent to such legislation, the appointment and functions of the Regent and Counsellors of State would then be valid in the State which had assented to the enactment of the British Regency Act. We take the view, secondly, that where any of the States of the Commonwealth cannot or does not request and assent to the enactment of the British Regency Act, the Parliament of that State must pass legislation providing for the appointment of a Regent or Counsellors of State to exercise royal functions in respect of the affairs of that State in the circumstances contemplated, namely, the incapacity, etc. of the King. We are satisfied that it is not a question of choice or discretion so far as the States of the Commonwealth are concerned, but that it is a matter of constitutional necessity for each of those States either to request and assent to British legislation in the matter (if that course is constitutionally possible) or to enact separate Regency legislation of its own.

In the discussions which took place at the meetings of Prime Ministers held in London during the month of May last, it appeared to be contemplated that in the absence of assent by a Member of the Commonwealth to a British Regency Act and in the absence of separate Regency legislation by the Parliament of that Member, a Regent or Counsellors of State appointed by or under a British Regency Act could validly perform royal functions in respect of the affairs of that Member. That is the precise point on which a difference of opinion has arisen between our two Governments and on which we would therefore wish you to have a statement of our considered view. In our view a Regent or Counsellors of State appointed on the authority of a British statute could perform no royal functions in respect of a Member of the Commonwealth which had not requested and assented to that statute and Regency legislation by that Member would be an absolute constitutional necessity.

In the course of our brief conversations here a fortnight ago we discussed the matter in the context of the Governor General of the Union of South Africa. You referred me to certain provisions of the Royal Executives Functions and Seals Act, 1934 and of the Status of the Union Act, 1934. We fully appreciate that under the present law of the Union the Governor General can now (upon proper constitutional advice) perform executive functions in the event of the King's incapacity, etc. The point, however, to which I sought to draw attention in our conversations is as follows: the relevant provisions of the Royal Executive Functions and Seals Act, 1934, and the Status of the Union Act, 1934, assume the existence and normal functioning of a Governor-General. Suppose, however, that the Union Government desires to terminate the appointment of a particular Governor General. Would the British Regent be advised in the matter by the Union Government? If so, on what legal authority? Suppose, again, the Governor-General dies while in office. Would the Government of the Union (pending the appointment of a new Governor-General) accept as valid in the Union royal functions performed in relation to its affairs by a Regent or Counsellors of State appointed in the United Kingdom by or under a British statute which the Union had not requested and to which it had not assented? Would the British Regent signify the King's Assent to legislation passed by both Houses of the Union Parliament? Would the Letters of Credence of Ministers Plenipotentiary accredited by the Union be signed by the United Kingdom Regent on the advice of the Government of the Union? The same question would arise in connection with the issue of full powers and the ratification of treaties in the Heads of States form. Again, would the new Governor General be appointed by the United Kingdom Regent on the advice of the Government of the Union? If so, what authority for any action of the kind referred to could be found in the present constitutional law of the Union? Would the South African Constitution which vests the executive authority of the Union in the King be regarded as having been validly amended by the British Regency Act although (1) the Union Parliament has power to amend its Constitution in that connection and has not done so, and although (2) the Union Parliament has not requested and assented to the British Regency Act? Can the Constitution of South Africa be amended by the British Parliament since the Statute of Westminster without the request and assent of the Union Parliament?

Our view is that the present law of the Union contains no provision for the contingencies to which I have been referring and that in those circumstances any acceptance of the idea that the British Regent could be advised by the Union Government to appoint a new Governor General or to perform any royal function in respect of the internal or external affairs of the Union during the interval between the death (or removal) of one Governor General and the appointment of his successor would be illegal and unconstitutional and would be contrary to the whole sense and intention of the Statute of Westminster. Lastly, a very serious issue must inevitably arise as to the legality of any official act whatever performed by a Governor General appointed (even on the advice of the Union Government) by a Regent whose existence and authority depend neither upon a statute of the Union Parliament nor upon a statute of the British Parliament which the Union has requested and to which it has assented.

The danger which we feared upon perusing the minutes of the meetings of Prime Ministers was that the Government of the Union might have committed itself to a course which would have been wholly inconsistent with the sovereignty of the Parliament of the Union of South Africa, and that the position recognised by the Statute of Westminster might have been fundamentally imperilled in so far as those Members of the Commonwealth were concerned whose Governments had taken part in the London discussions.