STATUTE OF WESTMINSTER, 1931 22 GEORGE V, CHAPTER 4 An Act to give effect to certain resolutions passed by Imperial [11th December, 1931.] WHEREAS the delegates to His Majesty's Governments in the United Kingdom, the Dominion of Canada, the Commonwealth of Australia, the Dominion of New Zealand, the Union of South Africa, the Irish Free State and Newfoundland, at Imperial Conferences holden at Westminster in the years of our Lord nineteen hundred and twenty-six and nineteen hundred and thirty did concur in making the declarations and resolutions set forth in the Reports of the said Conferences: 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 (2) of all the members of the Commonwealth in relation to one another that any alteration in the law touching the Succession to the Throne (3) or the Royal (1) The Statute of Westminster was passed to confirm and ratify certain declarations made by the Delegates to the Imperial Conferences of 1926 and 1930. The Dominions represented at the Conferences were Canada, Australia, New Zealand, South Africa, the Irish Free State, Newfoundland and India, although the latter is not touched by the Statute. (2) As to this constitutional position one may quote a passage in the report of the Inter-Imperial Relations Committee of the Imperial Conference of 1926 usually called "The Balfour Declaration": "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." Imperial Conference, 1926, Summary of Proceedings, p. 12. (3) Although the desiderata set out in the Preamble respecting the Succession to the Throne is not followed by any positive enactment in the enacting part of the Statute, pursuant to the recital in the Preamble and to the provision of section four of the Statute, after King Edward VIII had executed the instrument of abdication it was found necessary to declare the assent of the Parliament of Canada to the alteration in the law touching the Succession to the Throne and in March, 1937 "An Act respecting alteration in the law touching the Succession to the Throne" (c. 16) was passed for the purpose of consenting to the Act of the United Kingdom intituled "His Majesty's declaration of Abdication Act, 1936". See Note (8) to the Succession to the Throne Act (Canada). A.D. 1931. 147 Style and Titles(4) shall hereafter require the assent as well of the Parliaments of all the Dominions as of the Parliament of the United Kingdom: And whereas it is in accord with the established constitutional position that no law hereafter made by the Parliament of the United Kingdom shall extend to any of the said Dominions as part of the law of that Dominion otherwise than at the request and with the consent of that Dominion. (5) And whereas it is necessary for the ratifying, confirming and establishing of certain of the said declarations and resolutions of the said Conferences that a law be made and enacted in due form by authority of the Parliament of the United Kingdom: And whereas the Dominion of Canada, the Commonwealth of Australia, the Dominion of New Zealand, the Union of South Africa, the Irish Free State and Newfoundland have severally requested and consented to the submission of a measure to the Parliament of the United Kingdom for making such provision with regard to the matters aforesaid as is hereafter in this Act contained: (6) (4) Till 1947 the Royal style and titles were "George VI, by the Grace of God of Great Britain, Ireland, and the British Dominions beyond the Seas, King, Defender of the Faith, Emperor of India". (See the Royal and Parliamentary Titles Act, 1927, c. 4 of the Statutes of the U.K., 1927.) This was in accordance with the recommendation of the Imperial Conference, 1926 (Summary of Proceedings, p. 13). For Canada the Royal style and titles are now as follows: "Elizabeth the Second, by the Grace of God of the United-Kingdom, Canada and Her other Realms and Territories, Queen, Head of the Commonwealth, Defender of the Faith". See An Act respecting the Royal Styles and Titles, c. 9 of the Statutes of Canada, 1952-53, c. 9, infra. (5) The second and third paragraphs of the Preamble are declaratory of constitutional conventions. The second is not even translated into an enactment. The third is translated into law by section four of the Statute, it accepts and confirms the following proposition in the Report of the Conference of 1926: "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." (Summary of Proceedings, p. 15.) (6) The House of Commons and the Senate of Canada on the 30th of June and 8th of July, 1931, respectively, adopted an address to His Majesty in order that there may be passed a statute of the Parliament of the United Kingdom to enact paragraphs 2 and 3 of the Preamble and sections 2, 3, 4, 5, 6, 7 and 11. (See the speech of the Rt. Hon. R. B. Bennett, Prime Minister of Canada, starting at page 3191 of the House of Commons Debates, 1931, in which he said that "the Statute of Westminster is the culmination of the long, long effort that has been made since we were a colony, to become the self-governing dominion that we now are.") In the said speech he made a short historical sketch of the various steps taken, more particularly reviewing what transpired at the conferences of 1926, 1929 and 1930. See also the speeches of Messrs. Lapointe, Ralston and Bourassa which followed. Now, therefore, be in enacted by the King's Most Excellent Majesty by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows: in this Act. 1. In this Act the expression "Dominion" means any of the Meaning of following Dominions, that is to say, the Dominion of Canada, "Dominion" the Commonwealth of Australia, the Dominion of New Zealand, the Union of South Africa, the Irish Free State and Newfoundland. 2. (1) The Colonial Laws Validity Act, 1865, shall not apply to any law made after the commencement of this Act by the Parliament of a Dominion. Validity of laws made by Parliament of a 28-29 Vict., c. 63. (2) No law and no provision of any law made after the Dominion. 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 in so far as the same is part of the law of the Dominion. (7) 3. It is hereby declared and enacted that the Parliament of a Dominion has full power to make laws having extra-territorial operation. (8) (7) Pursuant to the declarations which had been made at the Conference of 1926, the conference of experts which met in 1929 recommended the repeal of this Act of 1865 which had been passed in the first instance to extend the powers of colonial legislatures beyond the narrow limits assigned to them by judicial decisions. The Act of 1865 had declared that laws passed by a colony should not be invalid unless they were repugnant to some Act of Parliament which applied to the colony, and only to the extent of such repugnancy. (See Nadan vs. The King, 1926 A.C. p. 482.) To repeal the Act of 1865 was not sufficient, for there was a danger that the repeal might be held to restore the old common law doctrine; it was therefore considered necessary to indicate that the Acts adopted by a Dominion since 1865 could not become inoperative on account of being repugnant to the law of England. The provinces (especially Ontario and Quebec) requested and obtained at the Interprovincial Conference which sat during April, 1931, that the benefits of section 2 be extended to them and this is the reason for the enactment of subsection (2) of section 7 of the Statute. (8) The right of extra-territoriality, which is one of the attributes of sovereignty, is the operation of laws upon the persons, the rights and the statutes existing outside of the limits of a state but continuing however to be subject to the laws of that state. It means for a nation the right to legislate for its own nationals outside of the limits of territorial waters, in such a way as to subject them to its own laws when they return to their country's jurisdiction. Our limitations with respect to extra-territoriality previously extended notably to fisheries, taxes, navigation, aviation, marriage, criminal law, copyright, deportation and finally to the bringing into force of Acts on smuggling and illegal immigration. Section 3 stipulates in an absolutely clear manner and without any restrictions that the Parliament of a Dominion has full power to make laws having extra-territorial operation. This section does not apply to the legislatures of the provinces, thus avoiding the conflict of laws which might arise if each province had the power to enact laws having extra-territorial operation. Power of Parliament Parliament of United Kingdom not to legislate for Dominion except by consent. Powers of Dominion Parliaments in relation to merchant shipping. 57-58 Vict., c. 60. 4. 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. (9) 5. Without prejudice to the generality of the foregoing provisions of this Act, sections seven hundred and thirty-five and seven hundred and thirty-six of the Merchant Shipping Act, 1894, shall be construed as though reference therein to the Legislature of a British possession did not include reference to the Parliament of a Dominion. (10) (9) The situation with respect to our right to legislate may be summarized as follows: In the beginning the United Kingdom would legislate for all its colonies without any form of consultation. The second period occurred when the colonies obtained the right to legislate subject to many restrictions, certain matters being reserved and remaining within the jurisdiction of the Parlia ment of the United Kingdom. During a third period the Dominions were allowed to adopt for their own territory the British Statute, as in 1911 the Copyright Act and in 1914 the British Nationality Act. A fourth period was that of consultation when the acts of interest to the whole Empire were to be adopted only after consultation of the different parties interested. For practical purposes, so far as uniformity of laws is required this period is still in existence, but the consultation has now become voluntary; for instance our Merchant Shipping Act has been enacted in conformity with the Convention respecting the British Commonwealth Merchant Shipping Agreement which has been signed in London on the 10th of December 1931. The United Kingdom has itself limited its own power of legislating with respect to the Dominions by the adoption of section 4 of the Statute. As may be noticed from the perusal of this section, the British Acts referred to, are those which have been passed after the coming into force of the Statute of Westminster. The Acts passed previously and which previously applied to the Dominions remain in force until our Parliament decides to repeal them. This section follows the recommendation of the Conference of 1930. (10) Up to the time of the passing of the Statute of Westminster, Canada's legislative autonomy in matters relating to merchant shipping was circumscribed by the provisions of the Colonial Laws Validity Act, 1865, and also by sections 735 and 736 of the Merchant Shipping Act of 1894 (British) and from the fact that the Dominion could not give to its legislation extraterritorial effect. The Merchant Shipping Act of 1854 applied to Great Britain and to its colonies, as there were then no Dominions. When the first Dominion was created in 1867, power was given to our federal Parliament to legislate as to navigation and merchant shipping. Our legislation, however, could be valid only in so far as it was not repugnant to that of the United Kingdom. A new British statute was passed in 1894 which was a consolidation of the Act of 1854 with the amendments made in the course of the past forty years. Therefore the British Act of 1894 with the amendments made thereto up to 1911, also our own merchant shipping legislation have governed us up to the coming into force of our own statute passed in 1934. From 1911, it had been stipulated that the amendments made to the legislation of the United Kingdom would not apply to the Dominions. We have mentioned previously that the Colonial Laws Validity Act was an obstacle to our autonomy in matters of shipping legislation and that another difficulty came from the fact that we could not pass laws having extra-territorial operation. These difficulties have ceased to exist from the operation of sections 2 and 3 of the Statute of Westminster already mentioned, which have cured these defects. Dominion to Courts of Admiralty. 53-54 6. Without prejudice to a generality of the foregoing Powers of provisions of this Act, section four of the Colonial Courts of Parliaments Admiralty Act, 1890 (which requires certain laws to be reserved in relation for the signification of His Majesty's pleasure or to contain a suspending clause), and so much of section seven of that Act as requires the approval of His Majesty in Council to any rules of Court for regulating the practice and procedure of a Colonial Court of Admiralty, shall cease to have effect in any Dominion as from the commencement of this Act. (11) 7. (1) Nothing in this Act shall be deemed to apply to the repeal, amendment or alteration of the British North America Acts, 1867 to 1930, or any order, rule or regulation made thereunder. (12) Section 2 states that the Colonial Laws Validity Act, 1865, shall not apply to any law made after the commencement of the Act by the Parliament of a Dominion, and section 3, that the Parliament of a Dominion has full power to make laws having extra-territorial operation. The non-application of the Colonial Laws Validity Act removed the main obstacle with respect to our right to legislate on merchant shipping. However, it was not sufficient to state that the Colonial Laws Validity Act would not apply in the future nor to declare that the Dominion Parliament could make laws having extra-territorial operation, but it was also necessary that sections 735 and 736 of the Imperial Merchant Shipping Act should cease to apply to the Dominions, and this was done by section 5 of the Statute of Westminster. For that reason, the Dominion has exercised that right by passing a new Merchant Shipping Act in 1934. By passing that Act, the Dominion has exercised the absolute right it has of legislating with respect to ships, wherever they may come from, when they happen to be in Canadian waters; it has exercised its right to legislate as to ships registered in Canada, whether they be in Canadian waters or elsewhere, subject in that case to local laws when the ships happen to be in non-Canadian waters or ports. (11) It is a moot question whether this section was necessary or not. The Colonial Courts of Admiralty Act of 1890 did govern, up to the passing of the Statute of Westminster, the constitution and, to a certain extent, the functioning of our courts of admiralty and had the effect of limiting their jurisdiction. Section 4 prevented the Dominion legislatures from extending their jurisdiction or affecting their procedure without the approval of the Secretary of State. The jurisdiction of our court of admiralty was limited to that of the High Court of Admiralty in England; on the other hand since 1890 important additions were made to the admiralty jurisdiction of the High Court which were not added to our own, that is to the jurisdiction of the Exchequer Court as a court of admiralty (chapter 29 of our statutes of 1891 had made the Exchequer Court a court of admiralty under the Colonial Courts of Admiralty Act). The restrictions imposed upon us have now disappeared by virtue of section 6 of the statute. It will not be necessary any more that our enactments before coming into force be approved by the Sovereign in Council, and as we have seen in the note to section 2, the Dominion Parliament was given power to repeal Acts of the United Kingdom "in so far as the same is part of the law of the Dominion," which of course includes the power to repeal, as far as we are concerned, the Colonial Courts of Admiralty Act, 1890. (12) The B.N.A. Acts, 1867 to 1930 referred to (to be found in this volume, ante) are the following: The B.N.A. Act, 1867 (being the main Act). The B.N.A. Act, 1871 (Establishment of Provinces). The B.N.A. Act, 1886 (Representation of Territories). The B.N.A. Act, 1915 (Alteration of constitution of Senate). Vict., c. 27. A.D. 1931. Saving for British North America Acts and application of the Act to Canada. |