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Page 558
ANNEX B
REPORT OF THE LAW OFFICERS OF THE CROWN
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We are asked to advise whether a Mr. Thivy, stated to be the representative of the Government of India in Malaya, enjoys there any immunity from suit. The question seems to us to raise, in an immediate form, the whole problem of the status of representatives of the Commonwealth countries. This is a matter of constitutional and political importance and as, on the view we take, the course to be chosen depends on policy, we think the matter should be referred to the Cabinet before the Attorney-General of Malaya submits the views of His Majesty's Government to the Malayan Court. This necessitates some effort being made to postpone the further hearing of the matter in Malaya.
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(1) The nature of the immunities to which a State representative is entitled in another State is based on international law and the comity of Nations although in practice it depends on the extent to which the rules of international law are embodied and applied by the municipal law of the country in which the immunity is claimed. We do not advise upon the law now current in Malaya, but the general position is that a diplomatic Envoy such as an Ambassador has whilst holding his office a complete immunity from suit both civil and criminal whether or not the subject matter of the suit arose either before or after he was appointed or related to his official office, the immunity probably continuing in relation to prior official acts after his appointment has come to an end. In the case of Consular representatives the immunity relates to his official acts only. In the practice of the English Courts it is for His Majesty to certify in what capacity and character the Agent comes to this country.
Musman v. Engelke (1928) A.C. p. 433. It is for the Courts to decide the nature of the immunity then attaching to him in that character. Hitherto the Courts have only considered these immunities in relation to Agents of foreign States, the locus classicus as to their entitlement to immunity being Magdalena Steam Navigation Co. v. Martin 1859 2 E & E 94. Since the rule itself was based on international law which has only recently accepted the Common- wealth countries as being fully sovereign States entitled to the right of legation the Courts have not had occasion to consider whether it applied to the repre- sentatives of countries within the Commonwealth and there are, indeed, instances in the books where suit has been brought against such representatives without any questions of immunity being raised (e.g., Isaacs v. Cook 1925 2 K.B. 391). Moreover, the text writers have hitherto taken the view that the ordinary diplo- matic immunities do not attach to the representatives of Commonwealth countries (cf. Oppenheim Vol. I International Law 7th Ed. p. 692).
(2) It seems to us, however, that the precedents of the last century, and indeed those prior to the Statute of Westminster have little relation to the facts of the existing relationship between the Commonwealth countries and might at the least be given a broad interpretation by the Courts if the matter came before them. It is, therefore, now for serious consideration whether the repre- sentatives of Commonwealth countries ought not to be accorded similar immunities to those extended to foreign representatives and, if so, how this result should be brought about. The question must in the last resort be decided by considera- tions of policy but in our view the legal position would quite possibly justify an affirmative conclusion.
(3) Whilst it is, of course, of importance that nothing should be done which would lend support to the view that the Commonwealth countries are foreign in relation to each other, it cannot now be doubted that they are accepted by the law of nations as fully sovereign and independent States united with each other in a special association. This is particularly true of the present and anticipated position of India. Since 1919 the different Commonwealth countries have been accepted as possessing and have frequently exercised the right of legation, and although in Mr. Bonar Law's declaration of 1920 this was stated to be subject to "the principle of the diplomatic unity of the British Empire" this doctrine has, we think, long since passed away. But whilst Commonwealth countries are beyond doubt entitled to send and receive diplomatic Envoys to and from countries outside the Commonwealth it does not follow that the between themselves are entit
to that status.
The two mantes58nge
in
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lawPag these ognion of the diplomatic status iPagch59eefarethat, except in the case of India, the recognition would involve His Majesty in accrediting or receiving representatives to or from himself and that the diplomatic immunity, arising as it does from international law, can only exist between foreign States which, in their relations with each other, the Commonwealth countries are not. We are not impressed by the difficulty of the first point. The so-called divisibility of the Crown was demonstrated by certain of the Dominions in connection with the abdication of King Edward VIII, and became the more real during the war when His Majesty was both at war and at peace. Recent Ministerial discussions on the possible alteration of the Royal Title have confirmed the view that The King must be regarded as acting in separate capacities as Monarch of his several nations. We do not think there is now any valid theoretical objection on this score.
The objection that diplomatic immunities have existed and can exist only between foreign States is more formidable and the argument against it, if carried too far, could prove embarrassing. Without embarking upon any detailed examination of the books it may perhaps be argued that ultimately the basis of diplomatic immunity flows from the fact that independent sovereign States have no power or control over each other by law-par in parem non habet imperium-and that the relations between them can, therefore, only be settled by negotiation, a function which their representatives could only efficiently carry out if they received the protection of jurisdictional immunity whilst in the territory of each other. This reasoning would seem to embrace the present States of the Commonwealth countries. Whilst it is true that, as a matter of English theory, the Imperial Parliament could undo what it has done in the Statute of Westminster, 1931, and the Indian Independence Act, 1947 (British Coal Corporation v. The King, 1935, A.C. 500 p. 520), the conventional principles of the Commonwealth stated in the Declaration of Conventional Equality of Status in 1926 and embodied in the Statute of Westminster leave no doubt that in practice the several countries of the Commonwealth although not regarding each other as foreign are independent and sovereign, par inter pares, and incapable of ordering their relations with each other save by negotiation. Such negotiations may occasionally be conducted through Prime Ministers or other responsible Ministers but are normally carried out by the High Commissioners who are, as it seems to us, in effect diplomatic representatives. It is true that they are not accredited and received in the same way as Ambassadors, but this is a matter of procedure. They are, in fact, received by His Majesty's Government as the representatives of their States and for the purpose of conducting relationships with those States. We do not think that the fact that they are not to be regarded as foreign in relation to each other should prevent the Commonwealth countries possessing a right of legation in relation to each other, and indeed a somewhat stronger case existed before the first world war when the member states of the Federal State of Germany sent and received diplomatic Envoys not only in intercourse with one another but also with outside States. The truth is, we think, that whilst the Commonwealth is sui generis the representatives of the various Commonwealth countries do now perform inter se what is in principle essentially a diplomatic function to which immunities could- we think ourselves should-quite properly be attached, but which owing to past practice and the gradual evolution to the present position does not automatically attract that protection. We shall refer later to the alternative courses of action to which this view might lead.
(4) There is, however, one respect in which we think that the position of the Commonwealth countries differs from that of foreign States. In the case of the latter, the English Court accepts a certificate from the Crown as to their sovereign independent status as conclusive. (Duff v. Kelantan, 1924, A.C. 797.) This is not only because it is convenient that there should be no divergence between His Majesty's Courts and His Majesty's Ministers in such a matter but because their status does not depend on English law and is peculiarly within the knowledge and prerogative of the Crown in the conduct of foreign affairs. That status of the Commonwealth countries is, on the contrary, derived from Statutes of the United Kingdom Parliament and the Courts might perhaps go behind a certificate from the Secretary of State if one were to be given.
(5) On the basis of the above view it is now necessary to consider the position of Mr. Thivy. Full diplomatic Representatives, such as Ambassadors, Ministers and Chargé d'Affaires, are received only at the seat of the Government of the
of an
Sovereign State to which they are accredited and, page the Commonwealth High
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Commissioner Page 56l6what Mr. Thivy cannot on anyagee ehted to full diplomatic status. It remains true that he has been received in Malaya as the representative of the State of India. We are not very fully informed as to his precise functions, but they seem to correspond broadly and indeed to be larger than those discharged by Consuls. Whilst, therefore, the claim of the Indian Government to full diplomatic immunity in respect of him seems untenable it seems difficult to deny him such immunities as attach to Consuls, although, indeed, these would afford him insufficient protection in the circumstances of the present suit.
(6) It remains to consider what should be done. There appear to be three
courses open-
(i) To instruct the Attorney-General of Malaya to inform the Court that His Majesty's Government does not accept Mr. Thivy in Malaya in the status of a High Commissioner in a diplomatic or consular capacity. Simultaneously, a communication might be addressed to the Government of India that the communication which the Attorney- General of Malaya made to the Court was in the view of His Majesty's Government the only communication that he could have been instructed to make in view of the hitherto existing practice that diplomatic. immunities have never been recognised as attaching to Commonwealth representatives within the Commonwealth.
(ii) To instruct the Attorney-General to inform the Court that Mr. Thivy is (following the actual language of the proposal of the Indian Govern- ment accepted in August 1947) accepted by His Majesty's Government as the representative in Malaya of the Government of India charged with the duty of maintaining liaison with the Malayan Government in all matters affecting Indian interests and Indians of all classes (not merely labour) and working for the promotion of better and more harmonious relations between the two countries and constituting the normal channel of communications between the Government of India and the Government of Malaya.
If this second course were adopted it would be for the Court to decide whether in view of the Attorney-General's statement any diplomatic or consular immunity attached to Mr. Thivy by virtue of his office, and the Attorney-General should also be instructed to present arguments to the Court to enable the Court to come to a conclusion as to whether any such privilege arose. The arguments should, of course, objectively present the considerations which could be suggested in favour and against the existence of any such privilege without formally committing himself or His Majesty's Government to any concluded view.
(iii) To introduce legislation in the United Kingdom Parliament creating
immunity in favour of Commonwealth representatives.
We favour the first course, which we think is probably most in accord with the existing state of the law on this topic. But since the Indian Government may well resent this somewhat negative attitude, the note to the Government of India should also state-
(i) that even if High Commissioners should now be regarded as entitled to full diplomatic immunity, His Majesty's Government felt that Mr. Thivy would in any event not be entitled to such immunity since his status was at the most broadly analagous to that of a Consul and High Commissioners were only received at the Metropolitan seat of His Majesty's Government in the United Kingdom, and the result, therefore, would be that in the particular case in question he could not be given any effective immunity since consular immunity would not be sufficient to protect him against the suit in question;
(ii) that His Majesty's Government in the United Kingdom felt that the time had come to review the whole question of the diplomatic status of Commonwealth representatives, it being hardly consistent with the real relationship between Commonwealth countries that High Commissioners and possibly subordinate representatives should not be invested with extra territorial immunity, and that His Majesty's Government in the United Kingdom proposed accordingly to initiate conversation with the other Commonwealth countries with a view to agreement on a common policy on the nature extent of the immunities to be accorded to each country's representatives.
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priate in this particular case and also because we think that the whole matter
Face:5
have suggested the above procedure pince we feel that it is appro-
should now be taken into consideration with a view to an accord between the Commonwealth countries for the reciprocal recognition of their respective representatives as entitled to the normal extra territorial immunity attaching to the diplomatic and consular envoys of sovereign States. We advise, therefore, that the matters should be submitted to the Cabinet with a view to their deciding whether action should be taken on the lines suggested. If an affirmative decision is reached and a basis acceptable to all Commonwealth countries is eventually arrived at in the subsequent conversations, it will remain to be settled, in the light of what is agreed, whether the matter should first be raised in a test action before the Courts or by the introduction of legislation.
(Signed)
HARTLEY SHAWCROSS.
FRANK SOSKICE.
Law Officers' Department,
28th July, 1949.