Statute of Westminster 1931 | Wikipedia audio article

Statute of Westminster 1931 | Wikipedia audio article

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The Statute of Westminster 1931 is an Act
of the Parliament of the United Kingdom and modified versions of it are now domestic law
within Australia and Canada; it has been repealed in New Zealand and implicitly in former Dominions
that are no longer 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. As the Statute removed nearly all of the British
Parliament’s authority to legislate for the Dominions, it had the effect of making the
Dominions fully sovereign nations in their own right. It was a crucial step in the development
of the Dominions as separate states. The Statute of Westminster’s relevance today
is that it sets the basis for the continuing relationship between the Commonwealth realms
and the Crown.==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 royal succession be exempt from the statute’s provisions, but it was determined
that this 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. 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 provides in section 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.
It also provides in section 2(1): 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 in so far as the
same is part of the law of the Dominion. The whole 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 of the Statute provided that sections 2 to 6 would
apply in the other three Dominions—Australia, New Zealand, and Newfoundland—only after
the parliament of that Dominion had legislated to adopt them.
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.
Ireland and South Africa are now republics and Newfoundland is part of Canada.===Australia===
Australia adopted sections 2 to 6 of the Statute of Westminster with the Statute of Westminster
Adoption Act 1942, in order to clarify the validity of certain Australian legislation
relating to the Second World War; the adoption was backdated to 3 September 1939, the date
that Britain and Australia joined the War. Adopting section 2 of the Statute clarified
that the Commonwealth parliament was able to legislate inconsistently with British legislation,
adopting section 3 clarified that it could legislate with extraterritorial effect. Adopting
section 4 clarified that Britain could legislate with effect on Australia as a whole only with
Australia’s request and consent. Nonetheless, under section 9 of the Statute,
on matters not within Commonwealth power Britain could still legislate with effect in all or
any of the Australian states, without the agreement of the Commonwealth although only
to the extent of “the constitutional practice existing before the commencement” of the Statute.
However, this capacity was never used. In particular, it was not used to implement the
result of the Western Australian secession referendum, 1933, as it did not have the support
of the Australian government. All British power to legislate with effect
in Australia ended with the Australia Act 1986, the British version of which says that
it was passed with the request and consent of the Australian parliament, which had obtained
the concurrence of the Australian states.===Canada===
This statute limited the legislative authority of the British parliament over Canada, effectively
giving the country legal autonomy as a self-governing Dominion, though the British parliament retained
the power to amend Canada’s constitution at the request of the Parliament of Canada. That
authority remained in effect until the Constitution Act, 1982, which transferred it to Canada,
the final step to achieving full sovereignty.The British North America Acts—the written elements
(in 1931) of the Canadian constitution—were excluded from the application of the statute
because of disagreements between the Canadian provinces and the federal government over
how the British North America Acts could be otherwise amended. 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
sections 4 and 7(1) of the Statute of Westminster. The Statute of Westminster remains a part
of the constitution of Canada by virtue of section 52(2)(b) of the Constitution Act,
1982. 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, while civil appeals continued
until 1949. The passage of the Statute of Westminster meant that changes in British
legislation governing the succession to the throne no longer automatically applied to
Canada.===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. 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. 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”.Motions
of approval of the Report of the Commonwealth Conference had been passed by the Dáil and
Seanad in May 1931 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. 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. 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.” 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.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. 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. In 1935, the JCPC ruled that both abolitions were valid under the Statute of
Westminster. The Free State, which in 1937 was renamed Ireland, left the Commonwealth
in 1949 upon the coming into force of its Republic of Ireland Act.===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.===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.==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
shared aspect 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.)
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 to request and consent to the British act and the British act would
have to state that 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.===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. 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 1772 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 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, where the requisite second flag pole is available.==See also==
Westminster system Chanak Crisis
Commonwealth of Nations membership criteria==Footnotes====
External links==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

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