140. RECORDS OF THE IMPERIAL CONFERENCE (1926)^[1]

Report of the inter-imperial relations committee.... II. Status of Great Britain and the dominions. The committee are of opinion that nothing would be gained by attempting to lay down a constitution for the British Empire. Its widely scattered parts have very different characteristics, very different histories, and are at very different stages of evolution; while, considered as a whole, it defies classification and bears no real resemblance to any other political organization which now exists or has ever yet been tried. There is, however, one most important element in it which, from a strictly constitutional point of view, has now, as regards all vital matters, reached its full development — we refer to the group of self-governing communities composed of Great Britain and the dominions. Their position and mutual relation may be readily defined. They are autonomous communities within the British Empire, equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs, though united by a common allegiance to the crown, and freely associated as members of the British Commonwealth of Nations.

A foreigner endeavouring to understand the true character of the British Empire by the aid of this formula alone would be tempted to think that it was devised rather to make mutual interference impossible than to make mutual co-operation easy. Such a criticism, however, completely ignores the historic situation. The rapid evolution of the oversea dominions during the last fifty years has involved many complicated adjustments of old political machinery to changing conditions. The tendency towards equality of status was both right and inevitable. Geographical and other conditions made this impossible of attainment by the way of federation. The only alternative was by the way of autonomy; and along this road it has been steadily sought. Every self-governing member of the empire is now the master of its destiny. In fact, if not always in form, it is subject to no compulsion whatever.

But no account, however accurate, of the negative relations in which Great Britain and the dominions stand to each other can do more than express a portion of the truth. The British Empire is not founded upon negations. It depends essentially, if not formally, on positive ideals. Free institutions are its life-blood. Free co-operation is its instrument. Peace, security, and progress are among its objects. Aspects of all these great themes have been discussed at the present conference; excellent results have been thereby obtained. And, though every dominion is now and must always remain the sole judge of the nature and extent of its co-operation, no common cause will, in our opinion, be thereby imperilled.

Equality of status, so far as Britain and the dominions are concerned, is thus the root principle governing our inter-imperial relations. But the principles of equality and similarity appropriate to status do not universally extend to function. Here we require something more than immutable dogmas. For example, to deal with questions of diplomacy and questions of defence, we require also flexible machinery — machinery which can, from time to time, be adapted to the changing circumstances of the world. This subject also has occupied our attention. The rest of this report will show how we have endeavoured, not only to state political theory, but to apply it to our common needs....

IV. Relations between the various parts of the British Empire. Existing administrative, legislative, and judicial forms are admittedly not wholly in accord with the position as described in section II of this report. This is inevitable, since most of these forms date back to a time well antecedent to the present stage of constitutional development. Our first task then was to examine these forms with special reference to any cases where the want of adaptation of practice to principle caused or might be thought to cause inconvenience in the conduct of inter-imperial relations.

(a) The title of his majesty the king. The title of his majesty the king is of special importance and concern to all parts of his majesty's dominions. Twice within the last fifty years has the royal title been altered to suit changed conditions and constitutional developments. The present title, which is that proclaimed under the Royal Titles Act of 1901, is as follows: "George V, by the Grace of God, of the United Kingdom of Great Britain and Ireland and of the British Dominions beyond the Seas King, Defender of the Faith, Emperor of India."

Some time before the conference met, it had been recognized that this form of title hardly accorded with the altered state of affairs arising from the establishment of the Irish Free State as a dominion. It had further been ascertained that it would be in accordance with his majesty's wishes that any recommendation for change should be submitted to him as the result of discussion at the conference.... We recommend that, subject to his majesty's approval, the necessary legislative action should be taken to secure that his majesty's title should henceforward read: "George V, by the Grace of God, of Great Britain, Ireland, and the British Dominions beyond the Seas King, Defender of the Faith, Emperor of India."

(b) Position of governors general. We proceeded to consider whether it was desirable formally to place on record a definition of the position held by the governor general as his majesty's representative in the dominions. That position, though now generally well recognized, undoubtedly represents a development from an earlier stage when the governor general was appointed solely on the advice of his majesty's ministers in London and acted also as their representative. In our opinion it is an essential consequence of the equality of status existing among the members of the British Commonwealth of Nations that the governor general of a dominion is the representative of the crown, holding in all essential respects the same position in relation to the administration of public affairs in the dominion as is held by his majesty the king in Great Britain, and that he is not the representative or agent of his majesty's government in Great Britain or of any department of that government.

It seemed to us to follow that the practice whereby the governor general of a dominion is the formal official channel of communication between his majesty's government in Great Britain and his governments in the dominions might be regarded as no longer wholly in accordance with the constitutional position of the governor general. It was thought that the recognized official channel of communication should be in future between government and government direct. The representatives of Great Britain readily recognized that the existing procedure might be open to criticism and accepted the proposed change in principle in relation to any of the dominions which desired it. Details were left for settlement as soon as possible after the conference had completed its work, but it was recognized by the committee, as an essential feature of any change or development in the channels of communication, that a governor general should be supplied with copies of all documents of importance and in general should be kept as fully informed as is his majesty in Great Britain of cabinet business and public affairs.

(c) Operation of dominion legislation. Our attention was also called to various points in connection with the operation of dominion legislation, which, it was suggested, required clarification. The particular points involved were (1) the present practice under which acts of the dominion parliaments are sent each year to London and it is intimated, through the secretary of state for dominion affairs, that "his majesty will not be advised to exercise his powers of disallowance" with regard to them; (2) the reservation of dominion legislation in certain circumstances for the signification of his majesty's pleasure, which is signified on advice tendered by his majesty's government in Great Britain; (3) the difference between the legislative competence of the parliament at Westminster and of the dominion parliaments in that acts passed by the latter operate as a general rule only within the territorial area of the dominion concerned; (4) the operation of legislation passed by the parliament at Westminster in relation to the dominions. In this connection special attention was called to such statutes as the Colonial Laws Validity Act.^[2] It was suggested that in future uniformity of legislation as between Great Britain and the dominions could best be secured by the enactment of reciprocal statutes based upon consultation and agreement.

We gave these matters the best consideration possible in the limited time at our disposal, but came to the conclusion that the issues involved were so complex that there would be grave clanger in attempting any immediate pronouncement other than a statement of certain principles which, in our opinion, underlie the whole question of the operation of dominion legislation. We felt that, for the rest, it would be necessary to obtain expert guidance as a preliminary to further consideration by his majesty's governments in Great Britain and the dominions....

On the question raised with regard to the legislative competence of members of the British Commonwealth of Nations other than Great Britain, and in particular to the desirability of those members being enabled to legislate with extra-territorial effect, we think that it should similarly be placed on record that the constitutional practice is that legislation by the parliament at Westminster applying to a dominion would only be passed with the consent of the dominion concerned....

(e) Appeals to the judicial committee of the privy council. Another matter which we discussed, in which a general constitutional principle was raised, concerned the conditions governing appeals from judgments in the dominions to the judicial committee of the privy council. From these discussions it became clear that it was no part of the policy of his majesty's government in Great Britain that questions affecting judicial appeals should be determined otherwise than in accordance with the wishes of the part of the empire primarily affected. It was, however, generally recognized that, where changes in the existing system were proposed which, while primarily affecting one part, raised issues in which other parts were also concerned, such changes ought only to be carried out after consultation and discussion....

V. Relations with foreign countries.... It was agreed in 1923 that any of the governments of the empire contemplating the negotiation of a treaty should give due consideration to its possible effect upon other governments and should take steps to inform governments likely to be interested of its intention. This rule should be understood as applying to any negotiations which any government intends to conduct, so as to leave it to the other governments to say whether they are likely to be interested. When a government has received information of the intention of any other government to conduct negotiations, it is incumbent upon it to indicate its attitude with reasonable promptitude. So long as the initiating government receives no adverse comments, and so long as its policy involves no active obligations on the part of the other governments, it may proceed on the assumption that its policy is generally acceptable. It must, however, before taking any steps which might involve the other governments in any active obligations, obtain their definite assent.

Where by the nature of the treaty it is desirable that it should be ratified on behalf of all the governments of the empire, the initiating government may assume that a government which has had full opportunity of indicating its attitude and has made no adverse comments will concur in the ratification of the treaty. In the case of a government that prefers not to concur in the ratification of a treaty unless it has been signed by a plenipotentiary authorized to act on its behalf, it will advise the appointment of a plenipotentiary so to act....

It was frankly recognized that in this sphere, as in the sphere of defence, the major share of responsibility rests now and must for some time continue to rest with his majesty's government in Great Britain. Nevertheless, practically all the dominions are engaged to some extent, and some to a considerable extent, in the conduct of foreign relations, particularly those with foreign countries on their borders. A particular instance of this is the growing work in connection with the relations between Canada and the United States of America, which has led to the necessity for the appointment of a minister plenipotentiary to represent the Canadian government in Washington. We felt that the governing consideration underlying all discussions of this problem must be that neither Great Britain nor the dominions could be committed to the acceptance of active obligations except with the definite assent of their own governments....

Parliamentary Papers, 1926, vol. XI.

^[1] Since the close of the nineteenth century regular conferences had been held between the British government and representatives of the dominions for the discussion of imperial questions.

^[2] No. 131F.