CAB129-37 — Page 552

Printed for the Cabinet. November 1949

Page 552

at 8m

SECRET

C.P. (49) 226

3rd November, 1949

CABINET

Copy No.

31

TITLE AND STATUS OF COMMONWEALTH HIGH COMMISSIONERS

MEMORANDUM by the Lord PRIVY SEAL

At the Meeting of Commonwealth Prime Ministers held in October 1948, there was considerable discussion as to the title and status of High Commissioners exchanged between Commonwealth countries. The majority view was against the title "High Commissioner," but agreement could not be reached on an alternative title. South Africa, Pakistan and Ceylon favoured the adoption of the title "Ambassador." Canada and Australia were prepared to agree to this: New Zealand, India and the United Kingdom opposed it. The United Kingdom Dele- gation, supported strongly by New Zealand, used the following arguments:-

(a) that this title carried with it by tradition and practice the implication.

that its holder was the representative of a foreign State;

(b) that the relation of Commonwealth Governments to one another is quite different in character from the relationship of foreign countries, and that this difference should be emphasised by the use of a different title for their representatives from that used by foreign countries; (c) that the treatment accorded to Commonwealth High Commissioners and their staffs is essentially different from that accorded to foreign repre- sentatives, and if the same title were accorded to both, the represen- tatives of foreign countries might claim the same treatment as those of Commonwealth countries.

As agreement could not be reached on the question of title, the matter was left over for discussion at a further meeting. The Meeting agreed to make certain changes in the status of High Commissioners, particularly as regards pre- cedence, in order to indicate clearly that they hold equivalent status to that held by Ambassadors.

2. Recently there have been developments which make it necessary to recon- sider the question of the title and position of High Commissioners. These are as follows:

(1) The United Kingdom High Commisssioner in India has reported that it has been indicated to him informally by the Government of India that when India becomes a Republic (on 26th January, 1950) the Govern- ment of India are likely to suggest that their representatives in other Commonwealth countries should be given the title of "Ambassador ” and receive full diplomatic immunities such as are accorded to the representatives of foreign states. In another connection the Govern- ment of India have formally represented in strong terms their dissatis- faction with the existing position under which representatives of Commonwealth countries do not receive the diplomatic immunity accorded to the representatives of foreign states. Sir Archibald Nye 3781 Page 552 of 1097

Page 552

2

'

Page 553has pressed a strong view that he song 55 put in the position to accept the proposed change of title as soon as it is intimated to him in a formal manner, and his advice is that we should "

go more than half-way to meet India and not risk appearing to give grudging acquiescence as the result of pressure.

(2) The Government of the Irish Republic have announced that Mr. Krishna Menon, who has been appointed Indian Ambassador to the Republic (and who is the first Ambassador to be accredited to the Irish Republic), will be accorded precedence over the United Kingdom Representative and other representatives of Commonwealth countries, to whom they accord only the status of Minister. In response to representations, the Irish Republican Government have indicated that they have always considered that our representative should be styled "Ambassador,' and that it would be most difficult for the question of precedence to be resolved in any other way. The High Commissioner for the Republic of Ireland in London enjoys the same precedence as foreign Ambas- sadors and other High Commissioners. The withdrawal of this precedence is the only sanction open to us against the present attitude of the Irish Republican Government. It would, however, be difficult on personal grounds to deal with Mr. Dulanty (who is next to the Doyen of the Diplomatic Corps in seniority) in this way, and if we did so it would be open to the Irish Republic to withdraw him and insist on appointing an Ambassador or Minister. It is necessary that this situation should be resolved in the fairly near future. The question of precedence has not arisen in a practical form hitherto because Mr. Krishna Menon is not resident in Dublin and has not been there since his appointment. It is, however, likely to arise in a practical form before the end of the year. The difficulties may also be enhanced if the United States, as is possible, appoint an Ambassador to Dublin.

""

*

title

3. The principal argument against the use of the title "Ambassador" by the representative of one Commonwealth country in another is that advanced at the 1948 Prime Ministers' Meeting, namely, that it denotes a foreign relationship. For this reason we insisted on the use of the title Representative for our representative in the Irish Republic in order to strengthen our case for maintaining that our new relationship with the Irish Republic was not a foreign relationship. A minor technical argument against accepting the "Ambassador for the representatives exchanged between Commonwealth countries has been that the King cannot accredit an Ambassador to himself. This argument does not apply in the case of the Irish Republic and will not apply in the case of India when it becomes a republic. It would probably not be insuperable if it were thought desirable to adopt the title Ambassador for all representa- tives of Commonwealth countries. The crucial question is whether the adoption of the title Ambassador will so weaken the Commonwealth relationship by appearing to assimilate it more closely to a foreign relationship that it ought to be resisted.

وو

f

4. The Board of Trade feel strongly that the use of the title " High Commissioner is an important visible symbol of the non-foreign status which Commonwealth countries enjoy in relation to one another. They therefore feel that such a change of title in respect of India and the Irish Republic would greatly weaken our ability to defend the continuance of tariff preferenecs. While this is of less practical importance to United Kingdom trade in regard to the Irish Republic than in regard to India, the Board of Trade consider that an attempt ought to be made to dissuade both Governments, and particularly the Indian Government, from pressing for the exchange of Ambassadors. To prevent such a change in the case of India is, in their view, specially important because a challenge in respect of preference in the Indian market is a serious risk and because India's example is likely to be followed by other Commonwealth countries. A general change made by all Commonwealth countries would weaken the claim to non-foreign status in respect of the Commonwealth in general. The Board of Trade have therefore suggested that this matter might be discussed between the Prime Minister and Pandit Nehru when he is in London on the basis that full dpalomatic infmunity and the same status as an Ambassador if bother respects would be granted to the Indian High Commissioner. The Commonwealth

282

3

Relations Office, wefel, advised by the United Kingofh Commissioner in India that in his view it would be hopeless and also harmful to our relations with the Government of India to endeavour to persuade them to forgo the title of Ambassador, that this would still be so if it were explained to them that diplomatic immunity would be granted; and that to make such a request would only be to court a rebuff.

وو

We

5. It appears to me exceedingly difficult to resist the Indian, claim. could, of course, reason with the Government of India and see whether we can persuade them to accept the title "High Commissioner. Sir Archibald Nye, however, clearly regards any such attempt as hopeless. If my colleagues agree with the further proposals which I make later in this paper as regards the grant of diplomatic immunity to Commonwealth representatives, we could accompany this attempt with an assurance that immunity will be granted, but I think that the prospect of such an attempt succeeding is so small that it is not worth pursuing. In my view we should, as Sir Archibald Nye advises, acquiesce in the Indian proposals without demur. If this is accepted, I see little reason for maintaining our attitude in the case of the Irish Republic. To accept the exchange of Ambassadors would get us out of a troublesome difficulty about the precedence of our Representative. We can hardly accept a position under which he and other Commonwealth representatives are given an inferior status merely because they are not styled " Ambassador," and we may well find that we should not have the support of other Commonwealth countries, particularly Australia, in refusing to accept the title Ambassador. The argument that to concede this title would weaken our case for asserting that our relationship with the Irish Republic is not a foreign relationship is no longer so forcible, since in fact no challenge to this proposition has been raised by any other country.

6. If these arguments are accepted, the question arises whether we should propose to other Commonwealth Governments that the title "Ambassador" should be adopted for all representatives exchanged between Commonwealth countries. Against this course there are the following arguments :-

(a) The general argument for preserving a distinguishing title for Common- wealth representatives which differentiates them from foreign repre- sentatives, reinforced by the general argument in relation to tariff preference advanced by the Board of Trade (see paragraph 4 above). (b) We should be leaving the New Zealand Government, who are the strong- est supporters of Commonwealth integrity, in a minority of one on a matter in which they have strongly supported us in maintaining a valuable distinguishing mark of the Commonwealth relationship. (c) It would be practicable to draw a distinction in this matter between India and other Commonwealth countries, since India alone will not owe allegiance to the Crown.

On the other hand we know from the 1948 discussions that the Governments of Australia, South Africa, Pakistan and Ceylon desire to adopt the title "Ambas- sador," and from more recent indications that Canada would raise no objection to doing so. We shall have to consult other Commonwealth countries before we agree to the adoption of this title in the case of India. This may lead some of them, e.g., South Africa, to press strongly for the same treatment. Thus we may be driven to adopt the title Ambassador for most Commonwealth representatives if not all. The Foreign Office consider that it would be preferable to make the change universally rather than piecemeal.

7. I recommend to my colleagues that we should approach all Commonwealth Governments on this subject as in the draft telegram in Annex A and leave them to express their views. If, as well may be, the majority are in favour of uniform adoption of the title "Ambassador," we should have to press the New Zealand Government to agree to this course, but could do so on the basis that this is the majority view. If not, I hope that we could hold the position that it is only in the case of representatives exchanged between India and other Common- weaolth countries that the title "Ambassador" is used.

""

8. If it is agreed to accept the title "Ambassador in the Irish Republic, is is desirable to make the change without waiting until the same change is made for India. The Canadian Government are known to be disposed to accede to a

37817 Page 554 of 1097

Page 554.

4

request which fiq being formed by the Irish Republic for the exchange of Ambassadors, and once it become known that we propose to make this change certain foreign countries which are now considering appointing Ambassadors may do so at once in order to secure precedence.

9. There remains the question of the grant of diplomatic immunity to the representatives of Commonwealth countries. High Commissioners and senior members of their staffs already receive the various privileges in respect of freedom from customs duties, taxation and so on which are accorded to foreign diplomatic representatives. They do not, however, receive the immunity from suit which is accorded to representatives of foreign powers. This point has become an issue with the Government of India over the case of Mr. Thivy, their representative in Malaya, who has been sued for libel in respect of actions committed in a private capacity before he was appointed as India's representative. The Government of India have, as a result, made strong representations to our High Commissioner to the effect that they regard it as a matter of national prestige that their representatives in other Commonwealth countries should have the same diplomatic immunity as they would have in a non-Commonwealth country. Our High Commissioner in India has urged in this connection that it is most desirable that he and his staff should have diplomatic immunity since, if at any time relations between this country and India should become strained, our representa- tives there might be severely harassed by legal proceedings taken against them in Indian Courts. The same considerations apply in Pakistan.

10. On the Prime Minister's instructions the case of Mr. Thivy was referred to the Law Officers for advice. The Law Officers have advised that, although immunity would not in any event have been available to Mr. Thivy in the circum- stances of his case, serious consideration should be given to the question whether representatives of Commonwealth countries ought not to be accorded similar immunities to those extended to foreign representatives, and that, while this question must in the last resort be decided by considerations of policy in their view the legal position would quite possibly justify an affirmative conclusion. The relevant parts of the Law Officers' opinion which deal with the legal position on this subject are set out in Annex B. The Law Officers indicate that in fact the question whether Commonwealth representatives are entitled to immunity has never been tested in the courts, and that, if it were, the courts might decide that these representatives are already entitled to such immunity. If they decided otherwise, legislation would be necessary. It will no doubt be agreed that if we decide that immunity should be granted, this should be done by legislation with- out waiting for the matter to be tested in the courts.

11. The question of granting immunity has been considered by officials, who have reached the conclusion that there is no administrative reason why this should not be granted and that, for the reasons given by the Law Officers, it is desirable that it should be done. It would, of course, be on a basis of reciprocity. It is contemplated that the High Commissioner and his staff at the capital of the country would be treated for the purpose of immunity (irrespective of the decision taken about his title) on the same footing as an Ambassador. Commonwealth representatives at places other than the capital or independent territories (e.g., the United Kingdom Deputy High Commissioners in Calcutta and Bombay and the Indian and Australian representatives in Malaya) would be treated on the same footing as Consuls.

The first step is to consult commonwealth Governments as to the general pro- posal. Subsequently, it will be necessary to consult with them in greater detail as to precisely which members of the staffs of their High Commissioners and our own should be granted immunity, and as to the detailed working of the arrange- In general the proposal is to follow as closely as possible the Foreign Office practice, and to make the actual immunity dependent upon a certificate by the Secretary of State for Commonwealth Relations that a particular individual is received in a certain capacity.

ment.

12. I recommend to my colleagues that this proposal should be approved in principle, that Commonwealth Governments should be approached in regard to it simultaneously but independently of the communication to them about the title of High Commissioners, and that it should be made clear that immunity should

be Branted irregive of the decision taken on thepquestion off the title. If the

283

5%

Page 556 55f9f1097 outcome of this consultation is satisfactory, the Commonwealth Relations Office

Page 556 should be authorised to promote legislation for this purpose early in the New Year. It is not part of my proposals that any changes agreed upon should apply to Southern Rhodesia, which does not control its own external relations. The position would be explained to the Southern Rhodesian Government at a later stage.

13. To sum up, I recommend---

(a) that we should decide in principle to exchange Ambassadors with India and the Irish Republic, in the case of India from the date on which India becomes a Republic;

(b) that Commonwealth Governments other than India should be consulted as in Annex A forthwith, and that the decision whether to adopt the style "Ambassador" generally instead of " High Commissioner " should await the outcome of this consultation;

==

(c) that the Commonwealth Relations Office should be authorised to consult Commonwealth Governments on the proposal to grant diplomatic and consular immunity on a reciprocal basis and subsequently to introduce legislation to grant such immunity to the representatives of all Com- monwealth countries which are prepared to grant comparable immunity to our own representatives.

2nd November, 1949.

· A.

ANNEX A

DRAFT TELEGRAM TO UNITED KINGDOM HIGH COMMISSIONERS, OTTAWA, CANBERRA, WELLINGTON, PRETORIA, NEW DELHI, KARACHI AND COLOMBO; AND TO UNITED KINGDOM REPRESENTATIVE TO REPUBLIC OF IRELAND

(Not to be copied to High Commissioners in London.)

My telegrams Y Nos. 298 and 299 of 9th August. Title of Commonwealth Representatives at Dublin.

1. In connection with grant of precedence over other Commonwealth repre- sentatives to newly appointed Indian Ambassador, United Kingdom representa- tive to Republic of Ireland has been informed by Minister of External Affairs that Government of Irish Republic consider title of High Commissioner or Representative to be anomalous in present circumstances, that they would prefer all representatives from Commonwealth countries at Dublin to be styled Ambassador, and that they would find it most difficult now to go to the Diplomatic Corps (with whom they had had difficulty in arranging for treatment of Common- wealth Representatives as if they were foreign ministers) with proposal to give them same precedence as Ambassadors if they did not have that title.

-

2. United Kingdom Representative warned Minister that, if it was not possible to grant United Kingdom Representative in Dublin the appropriate Ambassadorial precedence, it would probably be exceedingly difficult to justify its continuation to the Irish High Commissioner in London. He promised, however, to report the Minister's views.

3. United Kingdom High Commissioner in India has reported, and this has been confirmed by a conversation between United Kingdom High Com- missioner in Canada and his Indian colleague, that Government of India are likely to suggest that when India becomes a Republic title of representatives exchanged between India and other Commonwealth countries should be changed to Ambassador.

4. Agreement could not be reached at Meeting of Commonwealth Prime Ministers in 1948 on change of title of High Commissioners, and Mr. Attlee summarised thagestionofthe7end of that meeting as foPage:556Asfalgr9ement

B 3

37817

6

had not been reached it seemed best to leave the matter over for another meeting.

Page 557 of

Page 557 96 1997

of The United Kingdom Government were not opposed to the idea of finding an alternative title: but that of 'Ambassador' carried with it by tradition and practice the implication that its holder was the representative of a foreign State." The meeting agreed that representatives of Commonwealth countries to Common- wealth countries ought not to be accredited, as Ambassadors are, by Letters of Credence signed by The King. It is therefore necessary that Governments of other Commonwealth countries should be consulted before any change is agreed to in respect of Irish Republic or India.

5. Position of both Eire and India has changed since 1948. Former is a Republic outside the Commonwealth, and India will be a Republic within the Commonwealth. United Kingdom Government had attached importance to there being no change of title of Commonwealth representatives in Irish Republic in order to strengthen the hands of both Governments should foreign Governments claim that their relationship is now such that no more preferential treatment is legitimate than that given to most favoured nations. The appointment of an Indian Ambassador to Ireland has weakened this argument, no claims have in fact been made by foreign Governments, and the Minister of External Affairs informed the United Kingdom Representative that he did not attach importance to it. India will cease in January to owe allegiance to The King, and Indian Ambassadors will presumably be accredited by the President of the Indian Republic. There would therefore be no technical difficulty about exchange of Ambassadors between India and other Commonwealth countries.

6. Government of India have in another connection made strong formal representations that full diplomatic immunities should be accorded to all Indian representatives in other Commonwealth countries. I am addressing you separately on this subject. It is not considered, however, that this is the main motive behind Indian Government's request for change of title or that they would be satisfied with grant of immunities only.

7. The United Kingdom Government consider that the Government of India's desire to exchange Ambassadors with other Commonwealth countries will have to be acceded to. Differentiation in the case of India could be justified on the basis that India has ceased to owe allegiance to the Crown, a consideration which does not apply in the other countries of the Commonwealth, though there are obvious objections to cessation of a uniform practice as between countries of the Commonwealth. As regards the Irish Republic, the Government would be disposed to accede to their request. Before taking action, however, United Kingdom Government wish to receive views of other Commonwealth Governments.

8. Differentiation would be avoided if title of representatives of other Commonwealth Governments to whichever Commonwealth country they may be accredited were also changed to "Ambassador." This course would, however, be open to objections which Mr. Attlee and other United Kingdom Ministers expressed at the Prime Ministers' Meeting in October 1948. The United Kingdom Government still consider that these objections have substantial force and would, therefore, prefer to adhere to the title High Commissioner except in the case of India. They consider, however, that it is essential to preserve uniformity of practice between Commonwealth countries which owe allegiance. Moreover, differentiation may make it more difficult to maintain that India is entitled, as a member of the Commonwealth, to give to and receive from other Commonwealth countries the same preferences as those countries give to each other.

9. It should be noted and if necessary made clear that any alteration which may be adopted in regard to titles of representatives of Commonwealth countries or the representative of the Irish Republic would make no alteration in the existing responsibilities of the Secretary of State for Commonwealth Relations or the Commonwealth Relations Office.

10. United Kingdom High Commissioners in Ottawa, Canberra, Welling- ton, Pretoria, Karachi and Colombo are asked to bring above to immediate notice of Commonwealth Government concerned, with a view to securing expression of their views with as little delay as possible. This telegram is addressed to United Kingdom High Commissioner in Delhi and United Kingdom Representative at Dublin for information only at this stage.

7