Statute of Westminster

This article needs additional citations for verification. Please help improve this article by adding reliable references. Unsourced material may be challenged and removed. (August 2009)

The Statute of Westminster 1931 is an Act of the Parliament of the United Kingdom (22 & 23 Geo. V c. 4, 11 December 1931) which established a status of legislative equality between the self-governing dominions of the British Empire and the United Kingdom, with a few residual exceptions. The Statute remains domestic law within each of the other Commonwealth realms, to the extent that it was not rendered obsolete by the process of constitutional patriation.^{[citation needed]}

The Statute is of historical importance because it marked the effective legislative independence of these countries, either immediately or upon ratification. The residual constitutional powers retained by the Westminster parliament have now largely been superseded by subsequent legislation. Its current relevance is that it sets the basis for the continuing relationship between the Commonwealth realms and the Crown.^{[citation needed]}

Application

The Statute applied to the six dominions which existed in 1931: the Dominion of Canada, the Commonwealth of Australia, the Irish Free State, the Dominion of Newfoundland, the Dominion of New Zealand, and the Union of South Africa. It excluded revisions of the Acts of Parliament upon which the constitutions of Canada and Australia were founded. New Zealand's constitution is unwritten. Further, it did not apply to Australia, New Zealand or Newfoundland unless and until ratified by their respective Parliaments.

Australia ratified the Statute in 1942; to clarify government war powers, the adoption was backdated to 3 September 1939—the start of World War II. However the Colonial Laws Validity Act 1865 continued to have application in individual Australian states until the Australia Act 1986 came into effect.

New Zealand adopted the Statute on 25 November 1947 by its Statute of Westminster Adoption Act.

Newfoundland never adopted the Statute; by request of its government, the United Kingdom resumed direct rule in 1934 and maintained it until Newfoundland became a province of Canada in 1949.

Equality provisions

The Statute 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. The Colonial Laws Validity Act 1865 was repealed in its applications to the dominions. After the Statute was passed, the British government could no longer make ordinary law for the dominions, other than at the request and with the consent of the Parliament of that dominion.

It did not, however, immediately provide for any changes to the legislation establishing the constitutions of Australia and Canada. This meant, for example, that many constitutional changes continued to require the intervention of the British Parliament, although only at the request and with the consent of the Dominions as described above. These residual powers were finally removed by the New Zealand Constitution Amendment Act 1947, the Canada Act 1982, and the Australia Act 1986. The reason for the delay in relation to Canada and Australia was because the Statute still did not clarify the ability of the United Kingdom Parliament to legislate with regard to individual states of Australia or Provinces of Canada. This meant that while at a federal level the government was legislatively independent, the British Parliament retained a (mostly theoretical) ability to legislate at the state or provincial level. This brought up delicate questions of the separation of powers between the federal and state/provincial governments, which took time to be satisfactorily resolved. New Zealand, being a unitary state, did not have this kind of problem, and so requested their constitution to be patriated shortly after the Second World War. This request was immediately granted by the UK Parliament.

The key passage of the Statute 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 was also enacted that:

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.

Under the provisions of section 9 of the statute, the British Parliament still had the power to pass legislation regarding the Australian states, although "in accordance with the [existing] constitutional practice". In practice, these powers were not exercised. For example, in a referendum held in April 1933 in Western Australia, 68% of voters voted for the state to leave the Commonwealth of Australia with the aim of becoming a separate Dominion within the British Empire. The state government sent a delegation to Westminster to cause the result to be enacted, but the British Parliament refused to intervene on the grounds that it was a matter for the Commonwealth of Australia. As a result no action was taken. These residual powers were removed by the Australia Act 1986.

Footnote (by Mr G. H. Schorel-Hlavka) . Hansard 2-3-1898 Constitution Convention Debates QUOTE

  Mr. SYMON ( South Australia ).-

In the preamble honorable members will find that what we desire to do is to unite in one indissoluble Federal Commonwealth -that is the political Union-"under the Crown of the United Kingdom of Great Britain and Ireland , and under the Constitution hereby established." Honorable members will therefore see that the application of the word Commonwealth is to the political Union which is sought to be established. It is not intended there to have any relation whatever to the name of the country or nation which we are going to create under that Union . The second part of the preamble goes on to say that it is expedient to make provision for the admission of other colonies into the Commonwealth. That is, for admission into this political Union, which is not a republic, which is not to be called a dominion, kingdom, or empire, but is to be a Union by the name of "Commonwealth," and I do not propose to interfere with that in the slightest degree. END QUOTE

. As the Westminster Act refers to dominion Commonwealth of Australia it clearly cannot be applicable as such because the Commonwealth of Australia is no more but a "POLITICAL UNION" (never was a dominion) and as such all and any purported legislation based upon the Westminister Act, including the purported Australia Act 1986 is without constitutional (legal) foundation. A constitution act cannot be interfered with by ordinary legislation but can only be amended by an amending constitution act and no such amendment has been enacted since federation by the British Parliament regarding The Commonwealth of Australia Constitution Act.

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 to the Act of Settlement's provisions barring Roman Catholics from the throne or giving male heirs precedence over females would require the unanimous consent 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, so the preamble merely expresses a constitutional convention, albeit one fundamental to the basis of the relationship between the Commonwealth Realms. (Of course, 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.)

The convention about altering the "Royal Style and Titles" was altered by the Commonwealth Prime Ministers in 1953, when they agreed to pass individual Royal Styles and Titles Acts to enact different royal styles in each realm.

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 (Ireland and South Africa are now republics, and Newfoundland is part of Canada). This has raised some logistical concerns, as it would mean sixteen parliaments would all have to vote to approve any future changes, such as the abolition of male-preference primogeniture.

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 who, being a divorcée, Baldwin and other British politicians considered unacceptable to become Queen. Baldwin was able to get the then five Dominion Prime Ministers to agree with this consensus, and thus register their official disapproval over 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 and thus not have her 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 consent of the Dominion governments. The text of the 1936 act states that the Dominion of Canada consented to the Act applying in Canada under the Statute of Westminster, while Australia, New Zealand and the Union of South Africa also consented.

When Edward abdicated, the South African Parliament formally voted to "approve" the King's decision. 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 Parliament passed the Succession to the Throne Act 1937 (1 Geo. VI, c.16) to ratify the government's consent to the British Act. In Ireland, the laws allowing for the abdication of Edward as King of Ireland were not passed until the day following each of the other realms, which technically meant that Ireland had a different monarch for twenty-four hours. Further, Prime Minister Éamon de Valera used the departure of the Monarch as an opportunity to remove all monarchical language from the Constitution of the Irish Free State. A new Constitution of Ireland was approved by Irish voters in 1937, with the Irish Free State becoming simply "Ireland", or, when speaking or writing in the Irish language, Éire. Ireland became a republic in 1949.

See also

• Westminster system
• Chanak Crisis concerning Canada.
• Commonwealth of Nations membership criteria, a corpus of criteria including some of the principles of the Statute of Westminster

Footnotes

External links

Wikisource has original text related to this article: Statute of Westminster 1931

• Official text of the statute as amended and in force today within the United Kingdom, from the UK Statute Law Database
• 1 - Canada and the Statute of Westminster
• 2 - Canada and the Statute of Westminster
• Statute of Westminster, 1931 (text)
• Australia and the Statute of Westminster

v • d • e Constitution of Canada Constitution Act, 1867 Division of powers · Peace, order and good government · Criminal law power · Trade and Commerce clause · Works and Undertakings (Declaratory Power) · Property and civil rights · Disallowance and reservation Canada Act 1982 Constitution Act, 1982 Canadian Charter of Rights and Freedoms · Aboriginal Rights clause · Amending formula List of Canadian constitutional documents History of the Constitution Royal Proclamation of 1763 · Quebec Act · Constitutional Act of 1791 · Act of Union 1840 · British North America Acts · Statute of Westminster 1931 Constitutional debate Fulton-Favreau formula · Victoria Charter · Meech Lake Accord · Charlottetown Accord · Calgary Declaration · Other unsuccessful amendments Interpretation of the Constitution Pith and substance · Double aspect · Paramountcy · Living tree · Implied Bill of Rights · Interjurisdictional immunity