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Published online by Cambridge University Press: 16 January 2009
The passing of the Statute of Westminster, 1931, marked the end of a chapter in inter-Imperial constitutional relations. It was considered by most that, while old conventions must develop and new ones come into being, the legal problems of the Commonwealth had, as far as the Dominions and the mother-country are concerned, been finally solved. The hope has been expressed that ‘the time will soon have passed when the problem of inter-Imperial relations can profitably be discussed as a matter of municipal law’. It is over five years since the passing of the Statute of Westminster and it may not be unprofitable to review briefly inter-Imperial legal constitutional history since the passing of the Statute and to consider how far in the light of it we are justified in regarding as solved the strictly legal problems of inter-Imperial relations.
1 E. C. S. Wade in preface to 2nd edition of Wade and Phillips’ Constitutional Law, 1935.
2 This article does not touch upon problems of nationality.
3 Statute of Westminster, s. 10.
4 Though this particular difficulty could be largely avoided by the adoption of s. 5 of the Statute which, without prejudice to the generality of s. 2 deals specifically with merchant shipping.
5 Canada has by statute, Extra-Territorial Act, 1933, declared that Acts passed before 1931 and necessarily and reasonably so intended shall have extraterritorial effect.
6 1929, Cmd. 3479.
7 Mr. Justice Evatt suggests that the test is : “Does the law in question bear upon the peace, order and good government of the dominion either generally or in respect to specific subjects.” The British Dominions as Mandatories (Melbourne University Press), 1934.
8 British Coal Corporation and Others v. The King, [1935] A. C. 500, 520.
9 British Coal Corporation and Others v. The King, [1935] A. C. 500; Moore and Others v. Attorney-General for the Irish Free State and Others, [1935] A. C. 484.
10 Commonwealth of Australia Act, 1900, Constitution, 8. 74; South Africa Act, 1909, s. 106. Reservation is retained on this point by Status of the Union Act, 1934, s. 10, see infra.
11 It has been pointed out that this argument imputes to the British North America Act a necessary intendment that could never have been contemplated at the time of the passing of the Act. For discussion of this case, see articles cited in n. 17, infra.
12 Moore and Others v. Att.Gen. for the Irish Free State and Others, [1935] A. C. 484.
13 Performing Right Society v. Bray U. D. C, [1930] A. C. 377.
14 Articles of Agreement for a Treaty between Great Britain and Ireland, 1921, Art. 2.
15 Notes on Imperial Constitutional Law, Journal of Comparative Legislation and International Law, XVII, 222.
16 Kennedy, W. P. M., Essays in Constitutional Law (Oxford University Press) 172, n. 2.Google Scholar
17 British Coal Corporation and Others v. The King. The remark in Moore and Others v. The Att.-Gen. for the Irish Free State and Others that ‘ the prerogative is pro tanto merged in the Statute’ would seem to refer only to the Irish Treaty. Vincent C. MacDonald considers that the Judicial Committee took the view that the prerogative was merged in the Statute by the enactment of the Acts of 1933 and 1934 (13 Canadian Bar Review, p. 628); see also Prof. W. P. M. Kennedy, ibid, at p. 623; Potter A. Oyler, ibid, at p. 616; and W. I. Jennings in 52 L. Q. B. at p. 180. It is, however, submitted that this point was not decided. The Judicial Committee held, it is submitted, that even if the prerogative was not merged in the Statute, the British North America Act by necessary intendment gave power to restrict it.
18 Kennedy, Essays in Constitutional Law, 155 and 171.
19 Juridical Review, XLVI, No. 2, p. 161.
20 Juridical Review, XLVI, No. 2, p. 169.
21 Parliamentary Paper, Cmd. 4948.
22 Kennedy, and Schlosberg, , The Law and Custom of the South African Constitution (Oxford University Press), 103.Google Scholar
23 The conditions prescribed by this Act are alternative to acceptance of disallowance under the conditions prescribed under the Colonial Stock Act, 1900.
24 Kenney, Essays in Constitutional Law, p. 147.
25 See Wade & Phillips, Constitutional Law, 2nd ed. pp. 435, 436.
26 Kennedy, op cit. p. 169.
27 Wade & Phillips, op. cit. p. 445.
28 British Coal Corporation and Others v. The King, [1935] A. C. 500, 520.