CAB129-33 — Page 78

SECRET

C.P. (49) 50

7th March, 1949

Printed for the Cabinet. March 1949

CABINET

Page 78

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GERMANY-BASIC LAW (PROVISIONAL CONSTITUTION)

MEMORANDUM BY THE SECRETARY OF STATE FOR FOREIGN AFFAIRS

Present Position and Recommendations

I circulate as Annex A to this memorandum an abridged* version of the Basic Law (Provisional Constitution) which has been drawn up by the German Parliamentary Council at Bonn. This Basic Law is not yet in final form, since it is still under discussion by the German Parliamentary Council, and does not yet include any of the amendments which were put to the Parliamentary Council by the three Military Governors on 2nd March.

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2. These amendments, which have been agreed upon by the three Military Governors following their examination of the draft Basic Law, are attached at Annex B. They have been shown to representatives of the German Parliamentary Council, who will study them with a view to incorporating them into the Basic Law. The Military Governors have reached a clear understanding that the Basic Law cannot come into effect until it has been approved by their respective Governments. Vis-à-vis the Germans, the Military Governors have made no commitment about accepting the Basic Law nor about rejecting it if the Germans do not embody the proposed amendments in their entirety. If my colleagues now approve the Basic Law and the amendments proposed by the Military Governors, and provided that these amendments are substantially accepted by the Germans, I hope that it will not be necessary to trouble my colleagues to examine the Basic Law a second time. If, on the other hand, the Germans produce a final draft which deviates considerably from these amendments, my colleagues will have a further opportunity of examining the Basic Law.

3. For the information of my colleagues, I circulate at Annex C a commen- tary on the general character of the Basic Law, which reaches the conclusion that the Basic Law as a whole (even without the proposed amendments), satisfac- torily fulfils the purpose for which it was designed.

4. I now wish to recommend to my colleagues that :-

(i) They should approve the amendments agreed upon by the Military

Governors.

(ii) They should approve the Basic Law on the condition that these amend-

ments are accepted by the Germans.

Previous History

5. On 8th June, 1948 (C.M. (48) 37th Conclusions, Minute 1), the Cabinet approved a Letter of Advice to the Military Governors on the (Provisional) German Constitution in the terms of Annex H to C.P. (48) 143.

6. The Germans were not at first informed of the detailed requirements contained in the Letter of Advice since it was not the desire of the Occupying

* Owing to the inordinate length of the Basic Law (149 Articles) only the most important

Articles have been reproduced at Annex A. I shall, however, be glad to give an of my colleagues 8 the full version at their request I any gf ray-

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Powers to convey the impression at the outset thapeikta g's was being imposed upon them as to the form of Constitution which they were to draft. The only requirement conveyed to them at that time was that they should draft a democratic Constitution establishing, for the participating States, a govern- mental structure of Federal type, protecting the rights of the participating States, providing adequate central authority, and containing guarantees of individual rights and freedom. By November 1948, it became clear that the draft Basic Law was diverging very widely from the requirements outlined in the Letter of Advice. These requirements were accordingly conveyed to the Parliamentary Council with two additional paragraphs, namely:-

(g) that each citizen has access to public office with appointment and promotion being based solely on his fitness to discharge the responsi- bilities of the position and that Civil Service should be non-political in character;

(h) that a public servant if elected to the Federal Legislature shall resign his office with the agency where he is employed before he accepts election:""

These principles were, however, worded in such a way as to permit the Germans sufficient freedom to draw up a Constitution of their own devising, taking into account German traditions and methods. At the same time the intention was made abundantly clear that the Germans would not be allowed to rebuild a highly centralised State which would again facilitate the rise to power of totalitarian forces.

7. Since 1st September, 1948, the Parliamentary Council has been engaged in drawing up the Basic Law which is now nearing completion. At one time it seemed as if differences between the two major political parties, the Social Democrats and the right wing Christian Democrats, were so great that no agree- ment would be possible. After prolonged negotiations, however, a compromise, which was creditable to the parties and particulary to the Social Democrats, was reached between these two parties, and the Basic Law passed its third reading by the Main Committee. It has now only to be debated in a second and third Plenary Session before a final draft is achieved.

8. The Military Governors decided that it would be preferable for them to examine the Basic Law before the Plenary Session took place so that any amend- ments which they wished to make could be freely discussed and negotiated with the Germans, who would not at this stage have bound themselves by taking any decisions in a Plenary Session. In this way the appearance of Allied dictation would be avoided.

9.

૩.

In examining the Basic Law the Military Governors were only entitled to concern themselves with ascertaining whether the Basic Law as a whole was consistent with the principles laid down in the Letter of Advice. At their meetings in Frankfurt on 1st and 2nd March, the Military Governors reached agreement on those points in the Basic Law which they considered deviated from these principles and which therefore required amendments.

10. The most important of these amendments referred to:-

The legislative powers of the Federal Government.

(ii) The financial powers of the Federal Government.

(iii) The emergency powers of the Federal Government over Police. (iv) The reorganisation of the Land boundaries.

The position of Delegates from Greater Berlin.

(vi) The Civil Service.

11. On (i), it was considered that the Federal Government was given the right to exclusive and priority legislation over too great a variety of subjects. The Germans were accordingly instructed to restrict the number of these subjects and to define in greater detail the legislative rights of the Länder.

12. On (ii), the independence of the Länder was thought to be threatened by the excessive financial powers, legislative and administrative, retained by the Federal Government. An amendment to the Basic Law has therefore been prprosed by the Military Governors to the effect that Parate mfm8 of exclusive Land taxes should be drawn up and that the field of competence of the Federal Finance Administration should be restricted.

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13. On (iii), the power of the Federal State to give instructions to Police in the Länder in an emergency was considered unnecessary in a

Constitution, 18ce the Occupying Powers were responsible during age provis

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period for maintaining law and order. The provision is question would therefore be suspended unless the Germans were at any time directed otherwise by the Occupying Powers.

14. On (iv), when the Germans were invited to draw up a Constitution they were at the same time allowed to propose to the Occupying Powers alterations in Land boundaries before the establishment of the Federal Government. In the Basic Law the Germans made a provision for altering Land boundaries in the period following the establishment of the Federal Government. The Military Governors have therefore proposed that the right to alter Land boundaries should be deferred until consideration of the Peace Treaty.

15.

On (v), it was decided that the Basic Law could not apply automatically to Greater Berlin, in view of the special conditions prevailing there, but that there would be no objection to the responsible authorities in Berlin designating a small number of representatives to attend the meetings of the provisional German Parliament. In practice these will have the right to speak but not to

vote.

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16. On (vi), no provision had been made for a non-political Civil Service. This the Germans were instructed to make.

17. These amendments have now been conveyed to representatives of the Parliamentary Council, who received them with a good grace. After they have been discussed in that body, the Germans will inform the Military Governors whether they are ready to accept the amendments. If they accept them the final draft of the Basic Law will be similar to the present draft, subject to the amend- ments at Annex B. If, on the other hand, the Germans only accept certain of these amendments or attempt to modify them considerably, my colleagues will have a further opportunity to study the Basic Law.

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18. In conclusion I should like to make two points. The first is to emphasise that the provisions of the Basic Law are subject to those of the Occupation Statute, the drafting of which is not yet quite complete. This is well understood by the Germans and will be formally made clear to them at the time that the approval of the Military Governments to the Basic Law is given. This is, of course, a vital consideration since there are a number of matters in the Basic Law which have been quite properly included by the Germans, but which it would be difficult or inexpedient to allow them to operate without any control whatever during the period for which the Occupation Statute will be in force.

19. The second point which I should like to emphasise is that, provided the agreement which the three Military Governors reached in Frankfurt on 1st and 2nd March can be maintained as regards the general principles apper- taining to the Basic Law, and provided that there is no tendency among any of the three Governments to insist on small and detailed amendments which could only lead to delays and possibly to the destruction of the compromise between the two major parties which has made the present draft possible, the position which we have now reached seems to me satisfactory. For reasons connected with our broad policy in Germany and in Western Europe generally, it is most desirable that the remaining steps upon the draft Basic Law should be completed as soon as possible. If the three Military Governors can all be put in a position to approve it shortly, there is probably a good chance that it will be accepted by the people of Western Germany without too much difficulty.

E. B.

Foreign Office, S.W. 1,

7th March, 1949.

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