Letter from Diarmuid O'Hegarty to Michael McDunphy (Dublin) enclosing a secret memorandum by Patrick McGilligan on a meeting of the heads of delegations at the Conference on the Operation of Dominion Legislation

Enclosure¹

The meeting of Dominion delegates referred to at X in draft minutes of meeting held on 16th October, 1929, was held in the Dominions Office at 2.15 on 17th October. Lord Passfield presided, and there were also present Sir William Jowitt, Mr. Lapointe, Sir W. Harrison Moore, Sir James Parr, Mr. Beyers and myself.

    Lord Passfield opened the proceedings by stating that he and the Attorney General had thought it desirable to have this Conference as unless certain agreement had been reached at this meeting both he and the Attorney General felt that they would have to report to their Cabinet on Tuesday that there was no likelihood of a unanimous report emerging from the main Conference.

    He explained this by saying that the trend of the discussion on two days recently had made it clear that neither he nor the Attorney General could join in the recommendations that were obviously in the minds of certain of the Dominion delegations. He was therefore anxious to discuss certain fundamental matters with a view to seeing how far agreement could be secured so that they might approach their own Government with a recommendation for a unanimous report.

    He said that there were three important points outstanding - matters which had been previously described as laws fundamental to the structure of the British Commonwealth. These points were

He took the first question - the question of the Crown, and intimated as had previously been indicated by Sir William Jowitt that this matter was regarded as so fundamental that any change in it would destroy the Commonwealth position and any attempt to change it would endanger the whole structure. He suggested that this was recognised as fundamental and that the matter really for discussion was how this fact was to be brought out in the report, and how substantiated in the general enactment which would have to be provided dealing with the matters under discussion at the Conference on which agreement had been reached.

    It was generally agreed that the position of the Crown would have to be safeguarded but even at this point suggestions were put forward that it might be sufficiently safeguarded by a mere declaration in the Report of the Conference and need not be imported into the legislation that was to follow. Both Lord Passfield and the Attorney General indicated that in their view this would not be sufficient. After some further discussion Lord Passfield said that he had a draft which might form a preamble to the general Report of the Conference and would substantially deal with the matter under discussion, and that he had also a rough suggestion of his own as to the phrase proper to be used in the legislation. The draft declaration was produced. It reads as follows:-

Lord Passfield later read his suggestion for the enactment. It was as follows - 'The Crown - no alteration except by prior consent of all the Members of the Commonwealth to be signified by formal resolution of its legislature recorded by local Order in Council'. (It is to be noted that whereas the word 'consent' is suggested for the statute the word used in the preamble is 'consultation'. This however is deliberate. It is intended that the statute should be more precise than the report.)

    During the course of the discussion which followed I suggested that instead of speaking of principles underlying the whole of our work and continuing with a 'firstly' and 'secondly' we should combine these two points into one and so leave that particular paragraph of the report in this form 'We have assumed as the principles underlying the whole of our work that if at any time any alteration in the legislative structure relating to the Crown should be found to be necessary the method of effecting this alteration would be a matter for special consultation between all parts of the Dominions'. It was provisionally agreed by all that this change might be made. At one point I urged and was supported to some extent by Mr. Lapointe and Mr. Beyers that the declaration in the preamble should suffice and that any clause in the enactment having special reference to this was not required. Neither Lord Passfield nor the Attorney General could agree to this. They said that it was their own view after consultation with each other that this would not be sufficient, that it would in fact lead to their defeat in the House of Commons and that in the end we should be faced with what was now suggested put in as an amendment by the Conservatives.

    Sometime later Sir William Jowitt called attention to the rough draft suggested for the statute and referred to the words 'no alteration except by prior consent' and asked no alteration in what? In response to this various phrases were suggested and Lord Passfield and others put the sense of the matter generally that it should be 'no alteration in the laws relating to the Crown'.

    I had previously explained to the Conference the difficulties of all this from the Irish point of view and had confessed that in two respects I was in something of a dilemma. In the first place it would not be consistent with our general attitude towards Westminster legislation that with regard to the Crown we should rely on a British statute but that on the contrary we should take over and enact whatever was required in regard to the King on our own. On the other hand I made it clear - indeed it was quite clear without my mentioning it specially - that there would be special difficulty in our having to enact some of the statutes referring to the Succession.

    The second dilemma as I expressed it to the Conference was this. If the legislation referring to the Crown were phrased very precisely and very narrowly limited that would be all to the good as it very definitely limited the matters which were so marked out for special treatment. In my opinion there was a disadvantage in so limiting and precisely stating these things as it focussed public attention and attracted public criticism to them. My difficulty was recognised and the phrase was at one time used by Lord Passfield that so long as the succession was in fact safeguarded it did not matter a great deal to the British Government what phrase were used to explain or to hide this fact. At this point of the discussion Mr. Beyers indicated that while he was prepared to go a great distance in meeting the Irish difficulties he had a distinct preference that this statute should in this regard be as limited as was possible.

    Two further remarks worth recording were made. In answer to a question of mine Lord Passfield said that the decision as to whether each Dominion would take up this phrase in its special legislation was a matter for the Dominion itself. It would be sufficient for them if it were in their statute only - the Dominion would have to exercise their own judgment on this. Lord Passfield in this connection also pointed out that the phrase 'Members of the Commonwealth' was intended to include Great Britain as well as the Dominions and this being the case it was intended that the statute if considered as a legislative shackle would be a fetter on the Westminster Parliament as much as on any of the Dominion Parliaments.

    The matter was left so on the suggestion being made that each delegation would consider the terms of the draft and even of the statute and suggest changes as they thought desirable which were not in conflict with the fundamental principles expressed in Lord Passfield's draft.

    I am now of the opinion - and with this opinion I think the members of our delegation agree - that it will be better to have the phrase relating to the Succession limited distinctly to that if we can so secure. I have been helped to this conclusion by the fact that at the very end of the discussion Lord Passfield said something vaguely as to the position of the King as being in theory Commander in Chief and it would be clearly undesirable to have such a thing as this imported into the matters which may not be changed except by prior consent of all the Dominions.

    With regard to the second point, the control of the internal discipline of the defence forces of any member of the Commonwealth including Great Britain it emerged very soon that the importance which this question had assumed sprang from proposals which are evidently before the British Cabinet with regard to the elevation of India to Dominion status. It is the desire of the British Government that if and when they make arrangements to this end with India they will be able to impose their Army Act on any British forces which may even after that arrangement have to remain in India. Certain suggestions were made to meet the point and to all of them I was able to make objection by pointing out that they would create the impression that we were preparing either to receive large numbers of British troops in our territory or to send a number of our defence forces to England. In the end Lord Passfield suggested a phrase as follows - 'It is hereby declared that the forces of each Member of the Commonwealth (wherever they are) shall (as regards internal discipline) be subject only to its own municipal law. (It is to be noted that the two phrases enclosed in brackets in this were subsequent additions in order to make precise the words originally used by Lord Passfield.)

    It was generally agreed that it would be desirable for each Dominion in its legislation implementing the findings of the Conference to include this clause. In connection with this whole matter it was pointed out that we were only operating as between the different States of the Commonwealth the rules of International Law. It was also added that this could be looked upon as a very special instance of giving extra-territorial effect to ordinary legislation. There was very little discussion on this point once this phrase had been used as it was pretty well agreed by everyone that in that form it was perfectly innocuous.

    On the third matter, the question of Prize Law, Lord Passfield indicated that he personally did not think that this was really an important matter. He did say after this that the Admiralty would consider their task greatly lightened if they thought that any Dominion setting up Prize Courts of its own would agree that the law to be administered by these Courts would be identical with the Prize Law now existing. Most of the delegates urged that this was not so important a matter as to deserve a very prominent place in the Report and certainly not such as to warrant special reference to it in the statutes. At one stage of the discussion Lord Passfield said that if, as he was going to suggest later, we should set up by consent a new type of Court for other purposes and if we agreed to allow appeals on matters of Prize Law to be referred to such a Court that would settle the question so far as the British were concerned. The Attorney General followed on this by saying that at this time in particular it appeared to him to be most incongruous even to call attention to the question of Prize Law as that envisaged a war. He thought that subsequent to the Kellogg Pact and the Geneva Optional Clause and in view of the forthcoming Naval Conference it would be most inappropriate to single out this matter for special reference. He accordingly proposed, and it seemed to meet with general approval, that in dealing with this matter the report would merely suggest either that a later conference should meet or that there should in some other way be consideration to secure uniformity in the type of Prize Law to be administered by Prize Courts if the Dominions agreed to establish such Courts.

    He pointed out that from a Dominion point of view there was value in the use of a phrase like this as it stresses the competence of each Dominion to establish Prize Courts in the future.

    This finished the discussion on the three points stated by Lord Passfield in his opening speech to be the matters about which we are assembled. Lord Passfield however did not end the meeting at this point. He said that although not exactly within our terms of reference he thought we might consider the establishment of a Court to take cognisance of the type of dispute hinted at at the time of the signature of the Optional Clause in Geneva.² He said that on this point he had not had any instruction from any of his colleagues nor had he discussed the matter in detail with them but it was generally felt that their own reservations to the Optional Clause indicated that some Court must be established to replace the Permanent Court at The Hague. So far he said he had not been able to get beyond the idea of a Court composed of an equal number of Judges nominated by each of the Dominions (including Great Britain). I asked him if this Court was to be given Commonwealth disputes only and when I was questioned as to the propriety of raising that point at that moment I explained my position by saying that if the Court contemplated was only to adjudicate upon inter se disputes it would clearly meet very rarely and there was in fact no necessity for the establishment of anything corresponding to a Permanent Court at all. To meet such a situation I said that I agreed with the South African view as expressed at Geneva that what we required was not a permanent tribunal at all and that we should go no further than arrange machinery for constituting an ad hoc tribunal according as disputes arose. Mr. Beyers and Mr. Lapointe agreed with this point of view and Lord Passfield said that he was certainly considering a Court only to deal with disputes between members of the Commonwealth and not between groups of nationals in any of the different States. He expressed his own view that it would be quite inappropriate that the Judicial Committee of the Privy Council should deal with inter-commonwealth disputes and hinted that the new Court if arranged might substitute the Privy Council in dealing with the type of cases which now come before the Privy Council. Mr. Beyers at this point said that he would require some time to consider this last point and Lord Passfield agreed that we should not thrash this matter out now as he had only intended to initiate thought and discussion on this point. He hoped however that we would have the matter thought over and that he would probably seek an opportunity of discussing it again with the heads of the delegations.

    It was made quite clear that Lord Passfield and the Attorney General³ are to present their suggestions on these three matters to the British Cabinet at its meeting on Tuesday morning next. On more than one occasion they explained that it must not be taken for granted that the British Cabinet would agree even to what had been discussed that evening but they also indicated very clearly that they expected to get the approval of their Cabinet colleagues for these proposals.