Statute of Westminster 1931

For other similarly-named legislation, see Statute of Westminster.
Statute of Westminster, 1931[1]

Long title An Act to give effect to certain resolutions passed by Imperial Conferences held in the years 1926 and 1930.
Citation 22 & 23 Geo. 5 c. 4
Dates
Royal assent 11 December 1931
Status: Current legislation
Text of statute as originally enacted
Text of the Statute of Westminster 1931 as in force today (including any amendments) within the United Kingdom, from the UK Statute Law Database

The Statute of Westminster, 1931 is an Act of the Parliament of the United Kingdom and separate versions of it are now domestic law within Australia and Canada; it has been repealed in New Zealand and implicitly by subsequent laws in former Commonwealth realms. Passed on 11 December 1931, the act, either immediately or upon ratification, effectively both established the legislative independence of the self-governing Dominions of the British Empire from the United Kingdom and bound them all to seek each other's approval for changes to monarchical titles and the common line of succession. It thus became a statutory embodiment of the principles of equality and common allegiance to the Crown set out in the Balfour Declaration of 1926. It thus had the effect of making the Dominions sovereign nations.

The Statute of Westminster's relevance today is that it sets the basis for the continuing relationship between the Commonwealth realms and the Crown.[2]

Application

The Statute of Westminster gave effect to certain political resolutions passed by the Imperial Conferences of 1926 and 1930; in particular, the Balfour Declaration of 1926. The main effect was the removal of the ability of the British parliament to legislate for the Dominions, part of which also required the repeal of the Colonial Laws Validity Act 1865 in its application to the Dominions. King George V expressed his desire that the laws of succession be exempt from the statute's provisions, but, it was determined that would be contrary to the principles of equality set out in the Balfour Declaration. Both Canada and the Irish Free State pushed for the ability to amend the succession laws themselves and section 2(2) (allowing a Dominion to amend or repeal laws of paramount force, such as the succession laws, insofar as they are part of the law of that Dominion) was included in the Statute of Westminster at Canada's insistence.[3] After the statute was passed, the British parliament could no longer make laws for the Dominions, other than with the request and consent of the government of that Dominion. Before then, the Dominions had legally been self-governing colonies of the United Kingdom. However, the statute had the effect of making them sovereign nations once they adopted it.

The Statute of Westminster provides that:

No Act of Parliament of the United Kingdom passed after the commencement of this Act shall extend or be deemed to extend, to a Dominion as part of the law of that Dominion, unless it is expressly declared in that Act that that Dominion has requested, and consented to, the enactment thereof.

It also states:

No law and no provision of any law made after the commencement of this Act by the Parliament of a Dominion shall be void or inoperative on the ground that it is repugnant to the Law of England, or to the provisions of any existing or future Act of Parliament of the United Kingdom, or to any order, rule, or regulation made under any such Act, and the powers of the Parliament of a Dominion shall include the power to repeal or amend any such Act, order, rule, or regulation insofar as the same is part of the law of the Dominion.

The statute applied to Canada, the Irish Free State, and the Union of South Africa without the need for any acts of ratification; the governments of those countries gave their consent to the application of the law to their respective jurisdiction. Section 10 required the parliaments of the other three Dominions—Australia, New Zealand, and Newfoundland—to adopt the statute before it would apply to them as part of their domestic laws.

Since 1931, over a dozen new Commonwealth realms have been created, all of which now hold the same powers as the United Kingdom, Canada, Australia, and New Zealand over matters of change to the monarchy, though the Statute of Westminster is not part of their laws.[4] Ireland and South Africa are now republics and Newfoundland is part of Canada.

Australia

The Parliament of Australia passed the Statute of Westminster Adoption Act in 1942. To clarify its war powers, this adoption was backdated to 3 September 1939, the beginning of the Second World War. Sections eight and nine preserved the provisions of the Australian constitution and of the limitations on the powers of the Australian government.

However, section nine of the Statute of Westminster allowed the Colonial Laws Validity Act 1865 to have continued application in the six Australian states and the Australian Capital Territory; this allowed the British parliament to continue to pass legislation concerning the states and territory, although "in accordance with the [existing] constitutional practice". This lasted until the Australia Act 1986 came into effect, at which time section 4 of the Statute of Westminster in Australia was repealed.[5] Those powers, though, were never exercised in practice. For example, in a referendum on secession in Western Australia in April 1933, 68% of voters favoured leaving the Commonwealth of Australia and becoming a separate Dominion of the British Empire. The state government sent a delegation to Westminster to request that this result be enacted into law, but the British government refused to intervene on the grounds that this was a matter for the Commonwealth of Australia to be concerned with. As a result of this decision in London, no action was taken in Canberra or Perth.

Canada

Despite the fact that the Statute of Westminster applied to Canada without any need for ratification in its parliament, the British North America Acts—the written elements (in 1931) of the Canadian constitution—were excluded from the application of the statute. This was the result of disagreements between the Canadian provinces and the federal government over how the British North America Acts could be amended, otherwise.[6] These disagreements were resolved only in time for the passage of the Canada Act 1982, thus completing the patriation of the Canadian constitution to Canada. At that time, the Canadian parliament also repealed section 4 of the Statute of Westminster.[5]

As a consequence of the Statute's adoption, the Parliament of Canada gained the ability to abolish appeals to the Judicial Committee of the Privy Council. Criminal appeals were abolished in 1933,[7] while civil appeals continued until 1949.[8]

Irish Free State

The Irish Free State never formally adopted the Statute of Westminster, its Executive Council taking the view that the Anglo-Irish Treaty of 1921 had already ended Westminster's right to legislate for the Free State.[9] The Free State's constitution gave the Oireachtas "sole and exclusive power of making laws". Hence, even before 1931, the Free State did not arrest British Army and Royal Air Force deserters on its territory, even though the UK believed post-1922 British laws gave the Free State's Garda Síochána the power to do so.[9] The UK's Irish Free State Constitution Act 1922 said, however, "[n]othing in the [Free State] Constitution shall be construed as prejudicing the power of [the British] Parliament to make laws affecting the Irish Free State in any case where, in accordance with constitutional practice, Parliament would make laws affecting other self-governing Dominions".[10]

Motions of approval of the Report of the Commonwealth Conference had been passed by the Dáil and Seanad in May 1931[9][11][12] and the final form of the Statute of Westminster included the Irish Free State among the Dominions the British parliament could not legislate for without the Dominion's request and consent.[13] Originally, the UK government had wanted to exclude from the Statute of Westminster the legislation underpinning the 1921 treaty, from which the Free State's constitution had emerged. President W. T. Cosgrave objected, although he promised the Executive Council would not amend the legislation unilaterally. The other Dominions backed Cosgrave and, when an amendment to similar effect was proposed at Westminster by John Gretton, parliament duly voted it down.[14] When the statute became law in the UK, Patrick McGilligan, the Free State Minister for External Affairs, stated: "It is a solemn declaration by the British people through their representatives in Parliament that the powers inherent in the Treaty position are what we have proclaimed them to be for the last ten years."[15] He went on to present the statute as largely the fruit of the Free State's efforts to secure for the other Dominions the same benefits it already enjoyed under the treaty.[15]

After Éamon de Valera led Fianna Fáil to victory in the Free State election of 1932, he began removing the monarchical elements of the constitution, beginning with the Oath of Allegiance. De Valera initially considered invoking the Statute of Westminster in making these changes, but John J. Hearne advised him not to.[9] Abolishing the Oath of Allegiance in effect abrogated the 1921 treaty. Generally, the British thought that this was morally objectionable but legally permitted by the Statute of Westminster. Robert Lyon Moore, a southern unionist from County Donegal, challenged the legality of the abolition in the Free State courts and then appealed to the Judicial Committee of the Privy Council (JCPC) in London. However, the Free State had also abolished the right of appeal to the JCPC.[16] In 1935, the JCPC ruled that both abolitions were valid under the Statute of Westminster.[17]

New Zealand

The Parliament of New Zealand adopted the Statute of Westminster by passing its Statute of Westminster Adoption Act 1947 in November 1947. The New Zealand Constitution Amendment Act, passed the same year, empowered the New Zealand parliament to change the constitution, but did not remove the ability of the British parliament to legislate regarding the New Zealand constitution. The remaining role of the British parliament was removed by the New Zealand Constitution Act 1986 and the Statute of Westminster was repealed in its entirety.[5]

Newfoundland

The Dominion of Newfoundland never adopted the Statute of Westminster, especially because of financial troubles and corruption there. By request of the Dominion's government, the United Kingdom established the Commission of Government in 1934, resuming direct rule of Newfoundland. That arrangement remained until Newfoundland became a province of Canada in 1949.

Union of South Africa

Although the Union of South Africa was not among the Dominions that needed to adopt the Statute of Westminster for it to take effect, two laws—the Status of the Union Act, 1934, and the Royal Executive Functions and Seals Act of 1934—were passed to confirm South Africa's status as a sovereign state.[18]

Implications for succession to the throne

The preamble to the Statute of Westminster sets out conventions which affect attempts to change the rules of succession to the Crown. The second paragraph of the preamble to the statute reads:

And whereas it is meet and proper to set out by way of preamble to this Act that, inasmuch as the Crown is the symbol of the free association of the members of the British Commonwealth of Nations, and as they are united by a common allegiance to the Crown, it would be in accord with the established constitutional position of all the members of the Commonwealth in relation to one another that any alteration in the law touching the Succession to the Throne or the Royal Style and Titles shall hereafter require the assent as well of the Parliaments of all the Dominions as of the Parliament of the United Kingdom:

This means, for example, that any change in any realm to the Act of Settlement's provisions barring Roman Catholics from the throne would require the unanimous assent of the parliaments of all the other Commonwealth realms if the unity of the Crown is to be retained. The preamble does not itself contain enforceable provisions, it merely expresses a constitutional convention, albeit one fundamental to the basis of the relationship between the Commonwealth realms. (As sovereign nations, each is free to withdraw from the arrangement, using their respective process for constitutional amendment, and no longer be united through common allegiance to the Crown.) Additionally, per section 4, if a realm wished for a British act amending the Act of Settlement in the UK to become part of that realm's laws, thereby amending the Act of Settlement in that realm, it would have request and consent to the British act and the British act would have to state such request and consent had been given. Section 4 of the Statute of Westminster has been repealed in a number of realms, however, and replaced by other constitutional clauses absolutely disallowing the British parliament from legislating for those realms.

This has raised some logistical concerns, as it would mean multiple parliaments would all have to assent to any future changes in any realm to its line of succession, as with the Perth Agreement's proposals to abolish male-preference primogeniture.[19]

Abdication of King Edward VIII

During the abdication crisis in 1936, British Prime Minister Stanley Baldwin consulted the Commonwealth prime ministers at the request of King Edward VIII. The King wanted to marry Wallis Simpson, whom Baldwin and other British politicians considered unacceptable as queen, as she was an American divorcée. Baldwin was able to get the then five Dominion prime ministers to agree with this and thus register their official disapproval at the King's planned marriage. The King later requested the Commonwealth prime ministers be consulted on a compromise plan, in which he would wed Simpson under a morganatic marriage pursuant to which she would not become queen. Under Baldwin's pressure, this plan was also rejected by the Dominions. All of these negotiations occurred at a diplomatic level and never went to the Commonwealth parliaments. However, the enabling legislation that allowed for the actual abdication (His Majesty's Declaration of Abdication Act 1936) did require the assent of each Dominion parliament to be passed and the request and consent of the Dominion governments so as to allow it to be part of the law of each Dominion. For expediency and to avoid embarrassment, the British government had suggested the Dominion governments regard whomever is monarch of the UK to automatically be their monarch. However, the Dominions rejected this; Prime Minister of Canada William Lyon Mackenzie King pointed out that the Statute of Westminster required Canada's request and consent to any legislation passed by the British parliament before it could become part of Canada's laws and affect the line of succession in Canada.[3] The text of the British act states that Canada requested and consented (the only Dominion to formally do both[20]) to the act applying in Canada under the Statute of Westminster, while Australia, New Zealand, and the Union of South Africa simply assented.

In February 1937, the South African parliament formally gave its assent by passing His Majesty King Edward the Eighth's Abdication Act, 1937, which declared that Edward had abdicated on 10 December 1936; that he and his descendants, if any, would have no right of succession to the throne; and that the Royal Marriages Act 1772 would not apply to him or his descendants, if any.[21] The move was largely done for symbolic purposes, in an attempt by Prime Minister J. B. M. Hertzog to assert South Africa's independence from Britain. In Canada, the federal parliament passed the Succession to the Throne Act 1937, to assent to His Majesty's Declaration of Abdication Act and ratify the government's request and consent to it. In the Irish Free State, Prime Minister Éamon de Valera used the departure of Edward as an opportunity to remove all explicit mention of the monarch from the constitution of the Irish Free State, through the Constitution (Amendment No. 27) Act 1936, passed on 11 December 1936. The following day, the External Relations Act provided for the king to carry out certain diplomatic functions, if authorised by law. A new Constitution of Ireland, with a president, was approved by Irish voters in 1937, with the Irish Free State becoming simply "Ireland", or, in the Irish language, "Éire". However, the head of state of Ireland remained unclear until 1949, when Ireland unambiguously became a republic outside the Commonwealth of Nations by enacting the Republic of Ireland Act 1948.

Commemoration

In some countries where the Statute of Westminster forms a part of the constitution, the anniversary of the date of the passage of the original British statute is commemorated as Statute of Westminster Day. In Canada, it is mandated that, on 11 December, the Royal Union Flag (as the Union Jack is called by law in Canada) is to be flown at properties owned by the federal Crown,[22] where the requisite second flag pole is available.

See also

Footnotes

  1. ↑ Short title as conferred by s. 12 of the Act; the modern convention for citation of short titles in the UK is to omit the comma preceding the date
  2. ↑ Mackinlay, Andrew (10 March 2005). "Early day motion 895: Morganatic Marriage and the Statute of Westminster 1931". Queen's Printer. Retrieved 5 November 2011.
  3. 1 2 Anne Twomey (18 September 2014). Professor Anne Twomey - Succession to the Crown: foiled by Canada? (Digital video). London: University College London.
  4. ↑ Twomey, Anne (October 2011), Changing the Rules of Succession to the Throne, Sydney Law School, p. 11
  5. 1 2 3 Twomey 2011, p. 10
  6. ↑ Privy Council Office. "Intergovernmental Affairs > History > Why, in 1931, Canada Chose Not to Exercise its Full Autonomy as Provided for Under the Statute of Westminster". Queen's Printer for Canada. Retrieved 21 June 2013.
  7. ↑ Criminal Code Amendment Act, S.C. 1932–33, c. 53, s. 17
  8. ↑ Supreme Court Amendment Act, S.C. 1949 (2nd. session), c. 37, s. 3
  9. 1 2 3 4 Mohr, Thomas (2011). "British Imperial Statutes and Irish Sovereignty: Statutes Passed After the Creation of the Irish Free State" (PDF). The Journal of Legal History 32 (1): 61–85. doi:10.1080/01440365.2011.559120. ISSN 0144-0365.
  10. ↑ Mohr, Thomas (15 Nov 2010). "British Imperial Statutes and Irish Law: Imperial Statutes Passed Before the Creation of the Irish Free State" (PDF). Journal of Legal History 31 (3): 299–321. doi:10.1080/01440365.2010.525930.
  11. ↑ Dáil debates Vol. 39 No. 18 p.5
  12. ↑ Seanad debates Vol.14 No.30 p.3
  13. ↑ Statute of Westminster 1931, §§1,10
  14. ↑ HC Deb 24 November 1931 vol 260 cc303-55
  15. 1 2 "Press statement by Patrick McGilligan on the Statute of Westminster, Dublin". Documents on Irish Foreign Policy. Royal Irish Academy. 11 December 1931. No. 617 NAI DFA 5/3. Retrieved 5 January 2015.
  16. ↑ Constitution (Amendment No. 22) Act, 1933 Irish Statute Book
  17. ↑ Moore v Attorney General [1935] 1 I.R.
  18. ↑ Dugard, John; Bethlehem, Daniel L.; Du Plessis, Max (2005). International law: a South African perspective. Juta & Co. p. 19. ISBN 978-0-7021-7121-5.
  19. ↑ "Consent given for change to royal succession rules". BBC News. Retrieved 8 December 2012.
  20. ↑ E. C. S. W. (June 1937). "Declaration of Abdication Act, 1936". Modern Law Review 1 (1): 64–66.
  21. ↑ May. H.J. (1949). The South African Constitution
  22. ↑ Kinsella, Noël (11 December 2006), Statute of Westminster Day (PDF), Queen's Printer for Canada, retrieved 11 December 2012

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