Statute of Westminster 1931

For other similarly-named legislation, see Statute of Westminster.

Statute of Westminster, 1931

Parliament of the United Kingdom
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

The Statute of Westminster 1931 is an Act of the Parliament of the United Kingdom. Passed on 11 December 1931, the Act established legislative equality for the self-governing dominions of the British Empire with the United Kingdom. The Statute remains domestic law within each of the other Commonwealth realms, to the extent that it has not been implicitly repealed by subsequent laws.

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 The residual constitutional powers retained by the Westminster parliament have now largely been superseded by subsequent legislation.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.

Application

The Statute of Westminster applied to Canada, the Irish Free State, and the Union of South Africa without the need for any acts of ratification. Section 10 required the parliaments of the other three dominions, Australia, New Zealand, and the Dominion of Newfoundland, to adopt the statute before it would apply to them as part of their domestic laws.

• The Parliament of Australia passed the Statute of Westminster Adoption Act of 1942. In order to clarify its war powers, this adoption was backdated to 3 September 1939 at the beginning of World War II. However the Colonial Laws Validity Act 1865 continued to have application in the six Australian States and the Australian Capital Territory until the Australia Act of 1986 came into effect.

Sections eight and nine of the Statute of Westminster preserved the provisions of the Australian constitution and of the limitations on the powers of the Australian government.

• Despite the fact that the Statute of Westminster applied to the Dominion of Canada without any need for ratification, the British North America Acts, the current written elements (in 1931) of the Canadian Constitution were excluded from the application of the Statute of Westminster. The exclusion of the British North America Acts was the result of disagreements between the Canadian provinces and the Canadian Federal government over how the British North America Acts could be amended in an independent Canada.

These disagreements were resolved only in time for the passage of the Canada Act of 1982, thus completing the so-called patriation of the Canadian constitution to Canada.

• The Irish Free State never formally adopted the Statute of Westminster, although motions of approval of the Report of the Commonwealth Conference were passed by the Dáil and Seanad in May 1931. The British government had wanted to exclude from the statute the legislation underpinning the Anglo-Irish Treaty of 1921 from which the Free State's constitution emerged, but the Irish government objected and the other Dominions concurred. When an amendment to similar effect was proposed at Westminster by John Gretton, the British government duly voted it down. When Éamon de Valera led Fianna Fáil to victory in the Irish Free State election of 1932, he began removing the monarchical elements of the constitution, beginning with the Oath of Allegiance. Generally, the British thought that that this was morally objectionable -- but legally permitted under the Statute of Westminster. Robert Lyon Moore, a Southern unionist from County Donegal, challenged the legality of the abolition in the courts of the Republic of Ireland, and then he appealed to the Judicial Committee of the Privy Council (JCPC). However, the right of such appeal had been abolished in the meantime. In 1935 the JCPC ruled that both abolitions were valid under the Statute of Westminster.

• The Parliament of New Zealand adopted the Statute of Westminster by passing its Statute of Westminster Adoption Act of 1947 in November 1947, well-after the end of WW II.

• The Dominion of Newfoundland never adopted the Statute of Westminster, especially because of financial troubles and corruption there. By request of the Government of Newfoundland, the United Kingdom resumed its direct rule of Newfoundland in 1934, and it kept that until Newfoundland and Labrador became a province of Canada in 1949.

• 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.

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 of 1865 was repealed in its application to the dominions. After the Statute was passed, the British government could no longer make ordinary laws for the Dominions, other than with the request and consent of the Government 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 with the request and the consent of the Dominions as mentioned above. These residual powers were finally removed by the Canada Act 1982, the Australia Act 1986, and the New Zealand Constitution 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 British Parliament to legislate concerning the Provinces of Canada, especially Quebec, which raised many objections, and the States of Australia. This meant that while at the Federal level the governments were legally independent, the British Parliament retained a (hypothetical) ability to legislate at the Provincial or State levels.

This brought up obstinate questions on the separation of powers between the Federal and provincial or state governments, and these took time to be resolved satisfactorily. In New Zealand, the Parliament was empowered to change the constitution by the New Zealand Constitution Amendment Act 1947, which was the last piece of legislation passed by the British Parliament concerning the Government of New Zealand. Nevertheless this act did not remove the ability of the British Parliament to legislate regarding the New Zealand Constitution. This was carried out only by the passage of the Constitution Act of 1986.

The key passage of 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.

The State of Westminster 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.

Under the provisions of Section 9 of the State of Westminster, the British Parliament still had the power to pass legislation concerning the six States of Australia, although "in accordance with the [existing] constitutional practice". In practice, these powers have not been executed. For example, in Western Australia in the Secessionism in Western Australia#1933 referendum during April 1933, 68 percent of voters voted that this State should leave the Commonwealth of Australia to become 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. The only other possibility for Western Australia would have been to declare a rebellion against the Australian Federal Government.

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 as to altering the "Royal Style and Titles" was altered by the Commonwealth Prime Ministers in 1953, when they agreed to pass individual Royal Style 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, 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 consensus, 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 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.

In February 1937, the South African Parliament formally gave its "assent" by passing the Abdication Act, 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 would not apply to him or his descendants, if any. 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 the Irish Free State, the laws allowing for the abdication of Edward as King in Ireland were not passed until the day following each of the other realms, which technically meant that the State 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. As a result, Constitution (Amendment No. 27) Act 1936 was first passed on 10 December 1936, which, in addition to effecting his constitutional reforms, also provides for the use of the British monarch for certain diplomatic purposes while Ireland is still in the Commonwealth, if authorized by law. The External Relations Act, passed the next day, as well as properly approving the abdication, also triggers the constitutional clause, making the new king "authorized by Ireland" for external relations. A new Constitution of Ireland, with a President as head of state except for external relations, 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. However, as the External Relations Act was still in effect, the head of state of Ireland remained unclear until 1949, when Ireland unambiguously became a republic outside the British Commonwealth by enacting Republic of Ireland Act 1948.

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

External links

• Text of the Statute of Westminster 1931 as in force today (including any amendments) within the United Kingdom, from legislation.gov.uk.
• 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