Despatch from Patrick McGilligan to L.S. Amery (London)
(D.5648C) (No. 47) (Confidential) (Copy)

Sir,

I have the honour to acknowledge the receipt of your Confidential despatch No. 76 of the 16th February.

2. In connection with your reference to the paragraph of the Report of the Imperial Conference which sets out the position with regard to advising His Majesty, His Majesty's Government in the Irish Free State have nothing to add to the observations contained in paragraph 2 of my confidential despatch No. 42 of the 14th February,¹ except that the second sentence of the relevant paragraph of the Report presupposes consultation with the Dominions prior to advising His Majesty in any matter which even remotely concerns them. His Majesty's Government in the Irish Free State are glad to note that His Majesty's Government in the United Kingdom are in agreement with them as to the advisability of placing the question of the constitutional position in relation to the appointment of Counsellors of State on the Agenda of the next Imperial Conference.

3. The correction of the errors in His Majesty's title, in the description of the Treaty, and in the actual words of ratification, which you have been good enough to point out, have been made and the revised instrument is enclosed herewith.

4. With reference to points (c) and (d) of paragraph 5 of your despatch, His Majesty's Government in the Irish Free State do not accept the underlying suggestion that complete uniformity must exist between all the Members of the British Commonwealth of Nations in matters of constitutional practice. But is there any departure from constitutional practice involved in the additions made to the old form of ratification? It has become the accepted constitutional practice in the Irish Free State to obtain the approval of the Oireachtas for the ratification of all treaties and international agreements other than those of a purely administrative character and this approval has been set out in the instrument. The practice, based on a vital political principle whereby each of His Majesty's Governments advises His Majesty in its own affairs, is common to all the Members of the Commonwealth. The Irish Free State now for the first time has become a separate party to a Heads of State agreement. His Majesty's Government in the Irish Free State are now advising His Majesty to ratify that agreement and the instrument of ratification refers only to the Irish Free State. We are using an old form in which we are making certain modifications to make it conform with constitutional practice. That is the complete extent of the change.

5. There is therefore no departure from the resolution of the 1923 Conference which referred to the constitutional practice and not to the form of the instrument. There had been no separate ratification by His Majesty on behalf of a Dominion prior to that date.

In this connection, His Majesty's Government in the Irish Free State wish to remind His Majesty's Government in the United Kingdom that the readiness with which forms of this character are accepted depends on entirely different factors here and in Great Britain. Our people estimate their value only by the facts that they formulate; the people of Great Britain are content to accept them simply because they register a phase in their constitutional history. If that truth were accepted, I feel that our constitutional difficulties would perhaps be solved with greater ease and rapidity.