Statute of Westminster 1931
|Long title||An Act to give effect to certain resolutions passed by Imperial Conferences held in the years 1926 and 1930.|
|Chapter||22 & 23 Geo. 5 c. 4|
|Royal Assent||11 December 1931|
Status: Current legislation
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it are now domestic law within some of the other Commonwealth realms, to the extent that they have not been implicitly repealed by subsequent laws. 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. The Statute of Westminster's relevance today is that it sets the basis for the continuing relationship between the Commonwealth realms and the Crown.
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. 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.
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. Ireland and South Africa are now republics and Newfoundland is part of Canada.
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, though, in practice, those powers were never exercised. For example, in a referendum on secession in Western Australia in April 1933, 68% of voters voted that the 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.
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. 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.
Irish Free State
The Irish Free State never formally adopted the Statute of Westminster, though it still ended the ability of the British parliament to legislate for the Irish Free State without the latter's request and consent. In his press statement welcoming the adoption of the law, the Irish minister for external affairs, Patrick McGilligan, claimed its passing was a "Saorstát Achievement", further stating: "From the time that the Saorstát Government found themselves free to devote themselves to the task of getting all possible advantages out of the [Anglo-Irish] Treaty position they have worked unceasingly to secure the act of renunciation from the British Parliament. And it must be said that while very valuable help was received from Canada and South Africa the brunt of the task was admittedly borne by our Government."
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, while the other Dominions concurred. When an amendment to similar effect was proposed at Westminster by John Gretton, parliament 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 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 Irish Free State and then 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 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.
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.
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 or governments (depending on the wording of each constitution) 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.)
This has raised some logistical concerns, as it would mean multiple parliaments and governments would all have to approve any future changes to the lines of succession, as with the Perth Agreement's proposals to abolish male-preference primogeniture.
Abdication of King Edward VIII
During the His Majesty's Declaration of Abdication Act 1936) did require the request of the Dominion governments and the assent of the Dominion parliaments 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. The text of the British act states that Canada requested and consented (the only Dominion to formally do both) 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 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 federal parliament passed the Succession to the Throne Act 1937, to ratify the government's consent to the British act. 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.
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, where the requisite second flag pole is available.
- 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
- Mackinlay, Andrew (10 March 2005). "Early day motion 895: Morganatic Marriage and the Statute of Westminster 1931". Queen's Printer. Retrieved 5 November 2011.
- 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.
- Press statement by Patrick McGilligan on the Statute of Westminster, Dublin, 11 December 1931, No. 617 NAI DFA 5/3
- Dáil debates Vol. 39 No. 18 p.5
- Seanad debates Vol.14 No.30 p.3
- HC Deb 24 November 1931 vol 260 cc303-55
- Constitution (Amendment No. 22) Act, 1933 Irish Statute Book
- Moore v Attorney General  1 I.R.
- Dugard, John; Bethlehem, Daniel L.; Du Plessis, Max (2005). International law: a South African perspective. Juta & Co. p. 19.
- "Consent given for change to royal succession rules". BBC News. Retrieved 8 December 2012.
- E. C. S. W. (June 1937). "Declaration of Abdication Act, 1936". Modern Law Review 1 (1): 64–66.
- May. H.J. (1949). The South African Constitution
- Kinsella, Noël (11 December 2006), Statute of Westminster Day, Queen's Printer for Canada, retrieved 11 December 2012
- Text of the Statute of Westminster 1931 as in force today (including any amendments) 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