Editing Statute of Westminster 1931 (section)

==Application==

The Statute of Westminster gave effect to certain political resolutions passed by the [[Imperial Conference]]s of [[1926 Imperial Conference|1926]] and [[1930 Imperial Conference|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.<ref name=Twomey>{{cite AV media| people=[[Anne Twomey (academic)|Anne Twomey]]| title=Professor Anne Twomey – Succession to the Crown: foiled by Canada?| medium=Digital video| publisher=University College London| location=London| date=18 September 2014| url=http://vimeo.com/108335929}}</ref> 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.

The statute provides in section 4:
{{blockquote|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):
{{blockquote|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 the [[Dominion of 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 jurisdictions. Section 10 of the statute provided that sections 2 to 6 would apply in the other three Dominions —Australia, [[Dominion of New Zealand]], and [[Dominion of Newfoundland|Newfoundland]] – only after the respective parliament of that Dominion had legislated to adopt them.

Since 1931, over a dozen new [[Commonwealth realm]]s 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.<ref>{{cite web | last=Twomey| first=Anne |author-link=Anne Twomey (academic) |title=Changing the Rules of Succession to the Throne| date=October 2011| page=11| publisher=Sydney Law School | ssrn=1943287 |url=https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1943287}}</ref> Ireland and South Africa are now republics and Newfoundland is now part of Canada as a province.

===Australia===

[[File:Opening of the first parliament.jpg|thumb|''[[The Big Picture (painting)|The Big Picture]]'', opening of the Parliament of Australia, 9 May 1901, by Tom Roberts]]

Australia adopted sections 2 to 6 of the Statute of Westminster with the [[Statute of Westminster Adoption Act 1942]],<ref>{{Cite Legislation AU|Cth|act|sowaa1942379|Statute of Westminster Adoption Act 1942}}</ref> in order to clarify the validity of certain Australian legislation relating to the [[World War II|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 Parliament of Australia 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.<ref name="Australian independent government">{{cite web |title=Statute of Westminster Adoption Act 1942 |url=https://peo.gov.au/understand-our-parliament/history-of-parliament/history-milestones/australian-parliament-history-timeline/events/statute-of-westminster-adoption-act-1942 |website=Parliamentary Education Office |publisher=Government of the Commonwealth of Australia |access-date=27 February 2025}}</ref>

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 had never been used. In particular, it was not used to implement the result of the [[1933 Western Australian secession referendum]], as it did not have the support of the Australian government.<ref name="Australian Secession Referendum">{{cite web |title=Western Australian Secession Referendum |url=https://peo.gov.au/understand-our-parliament/history-of-parliament/history-milestones/australian-parliament-history-timeline/events/western-australian-secession-referendum |website=Parliamentary Education Office |publisher=Government of the Commonwealth of Australia |access-date=27 February 2025}}</ref>
 
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 [[Parliaments of the Australian states and territories|parliaments of the Australian states]].<ref name=SydLaw>{{harvnb| Twomey| 2011| p=10}}</ref>

===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 Canada. That authority remained in effect until the [[Constitution Act, 1982|''Constitution Act, 1982'']], which transferred it to Canada, the final step to achieving full sovereignty.<ref>{{cite web |url=http://www.bac-lac.gc.ca/eng/discover/politics-government/proclamation-constitution-act-1982/Pages/proclamation-constitution-act-1982.aspx |title=Proclamation of the Constitution Act, 1982 |author=<!--Staff writer(s); no by-line.--> |date=5 May 2014 |website=Canada.ca |publisher=Government of Canada |access-date=10 February 2017 |archive-date=11 February 2017 |archive-url=https://web.archive.org/web/20170211083245/http://www.bac-lac.gc.ca/eng/discover/politics-government/proclamation-constitution-act-1982/Pages/proclamation-constitution-act-1982.aspx |url-status=live }}</ref><ref>{{cite news|url=https://www.theglobeandmail.com/opinion/a-statute-worth-75-cheers/article1329730/|title=A statute worth 75 cheers|date=17 March 2009|access-date=10 February 2017|newspaper=The Globe and Mail|location=Toronto|archive-date=11 February 2017|archive-url=https://web.archive.org/web/20170211081156/http://www.theglobeandmail.com/opinion/a-statute-worth-75-cheers/article1329730/|url-status=live}}</ref><ref>{{cite web |url=http://www.cbc.ca/2017/canada-is-celebrating-150-years-of-what-exactly-1.3883315 |title=Canada is celebrating 150 years of… what, exactly? |last=Couture |first=Christa |date=1 January 2017 |publisher=Canadian Broadcasting Corporation |access-date=10 February 2017 |quote=... the Constitution Act itself cleaned up a bit of unfinished business from the Statute of Westminster in 1931, in which Britain granted each of the Dominions full legal autonomy if they chose to accept it. All but one Dominion – that would be us, Canada – chose to accept every resolution. Our leaders couldn't decide on how to amend the Constitution, so that power stayed with Britain until 1982. |archive-date=10 February 2017 |archive-url=https://web.archive.org/web/20170210001343/http://www.cbc.ca/2017/canada-is-celebrating-150-years-of-what-exactly-1.3883315 |url-status=live }}</ref>
 
The [[British North America Acts]]—the written elements (in 1931) of the [[Constitution of Canada|Canadian constitution]]—were excluded from the application of the statute because of disagreements between the [[Provinces and territories of Canada|Canadian provinces]] and the federal government over how the British North America Acts could be otherwise amended.<ref>{{cite web| url=http://www.pco-bcp.gc.ca/aia/index.asp?lang=eng&page=hist&doc=westminster-eng.htm| last=Privy Council Office| title=Intergovernmental Affairs > History > Why, in 1931, Canada Chose Not to Exercise its Full Autonomy as Provided for Under the Statute of Westminster| publisher=Queen's Printer for Canada| access-date=21 June 2013| archive-date=5 August 2014| archive-url=https://web.archive.org/web/20140805231601/http://www.pco-bcp.gc.ca/aia/index.asp?lang=eng&page=hist&doc=westminster-eng.htm}}</ref> These disagreements were resolved only in time for the passage of the [[Canada Act 1982|''Canada Act 1982'']], thus completing the [[patriation]] of the Canadian constitution to Canada.

At that time, the Parliament of the United Kingdom also repealed ss 4 and 7(1) of the Statute of Westminster as applied to Canada.<ref>Constitution Act, 1982, s 53(1) & Schedule, Item 17.</ref> The Statute of Westminster, as amended, remains a part of the constitution of Canada by virtue of section 52(2)(''b'') of and the schedule to the ''Constitution Act, 1982''. The Newfoundland Terms of Union expressly provide for the application of the Statute of Westminster to the province of Newfoundland and Labrador.<ref name="ReferenceA">Newfoundland Act, Schedule, Term 48.</ref>

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,<ref>''Criminal Code Amendment Act'', S.C. 1932–33, c. 53, s. 17</ref> while civil appeals continued until 1949.<ref>''Supreme Court Amendment Act'', S.C. 1949 (2nd. session), c. 37, s. 3</ref> 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.<ref>{{cite web |url=http://blogs.usyd.edu.au/cru/2013/02/the_royal_succession_and_the_d.html |title=The royal succession and the de-patriation of the Canadian Constitution |author=Anne Twomey |date=4 February 2013 |access-date=4 March 2017 |archive-date=26 April 2013 |archive-url=https://web.archive.org/web/20130426014326/http://blogs.usyd.edu.au/cru/2013/02/the_royal_succession_and_the_d.html }}</ref>

===Irish Free State===

The [[Irish Free State]] never formally adopted the Statute of Westminster, its [[Executive Council of the Irish Free State|Executive Council]] (cabinet) taking the view that the [[Anglo-Irish Treaty]] of 1921 had already ended Westminster's right to legislate for the Irish Free State.<ref name=Mohr2011>{{cite journal|last=Mohr|first=Thomas|year=2011|title=British Imperial Statutes and Irish Sovereignty: Statutes Passed After the Creation of the Irish Free State|journal=Journal of Legal History|volume=32|issue=1|pages=61–85|issn=0144-0365|doi=10.1080/01440365.2011.559120|url=http://researchrepository.ucd.ie/bitstream/handle/10197/6058/British_Imperial_Statutes_and_Irish_Sovereignty.pdf?sequence=1|hdl=10197/6058|s2cid=144062978|hdl-access=free|access-date=4 February 2015|archive-date=4 February 2015|archive-url=https://web.archive.org/web/20150204194448/http://researchrepository.ucd.ie/bitstream/handle/10197/6058/British_Imperial_Statutes_and_Irish_Sovereignty.pdf?sequence=1|url-status=live}}</ref> The [[Constitution of the Irish Free State|Free State's constitution]] gave [[Oireachtas of the Irish Free State|the Oireachtas]] "sole and exclusive power of making laws". Hence, even before 1931, the Irish Free State did not arrest [[desertion|deserters]] from the [[British Army]] and [[Royal Air Force]] on its territory, even though the UK believed post-1922 British laws gave the Free State's [[Garda Síochána]] the power to do so.<ref name=Mohr2011/> The UK's [[Irish Free State Constitution Act 1922]] said, however, "{{nowrap|[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".<ref>{{cite journal|last=Mohr|first=Thomas|date=2010|title=British Imperial Statutes and Irish Law: Imperial Statutes Passed Before the Creation of the Irish Free State|journal=Journal of Legal History|volume=31|issue=3|pages=299–321|doi=10.1080/01440365.2010.525930|s2cid=144573032|url=http://researchrepository.ucd.ie/bitstream/handle/10197/6055/British_Imperial_Statutes_and_Irish_Law.pdf?sequence=1|hdl=10197/6055|hdl-access=free|access-date=12 March 2015|archive-date=2 April 2015|archive-url=https://web.archive.org/web/20150402124528/http://researchrepository.ucd.ie/bitstream/handle/10197/6055/British_Imperial_Statutes_and_Irish_Law.pdf?sequence=1|url-status=live}}</ref> In 1924, [[Kevin O'Higgins]], the Free State's [[Vice-President of the Executive Council of the Irish Free State|Vice-President of the Executive Council]], declared that "Ireland secured by that 'surrender' [the Treaty] a constitutional status equal to that of Canada. 'Canada,' said the late Mr. [[Bonar Law]],' is by the full admission of British statesmen equal in status to Great Britain and as free as Great Britain'. The constitutional status of Ireland, therefore, as determined by the Treaty of 1921, is a status of co-equality with Britain within the British Commonwealth. The second Article of the Constitution of the Free State", he added, "declares that 'All powers of Government and all authority, legislative, executive and judicial, in Ireland are derived from the people of Ireland' ".<ref name="Three years">{{Cite book |last=Ó hUigín |first=Caoimhghín Críostóir |url=https://archive.org/details/threeyearshardla00ohig |title=THREE YEARS HARD LABOUR An Address Delivered to the Irish Society of Oxford University on the 31st October, 1924 |date=31 October 1924}}</ref>

Motions of approval of the Report of the Commonwealth Conference had been passed by the [[Dáil Éireann (Irish Free State)|Dáil]] and [[Seanad Éireann (Irish Free State)|Seanad]] in May 1931<ref name=Mohr2011/><ref>{{cite web|url=https://www.oireachtas.ie/en/debates/debate/dail/1931-07-17/4/|title=Report of the Commonwealth Conference. – Motion of Approval (Resumed) – Vol. 39 No. 18|date=17 July 1931|website=[[Oireachtas]]|access-date=18 June 2023|archive-date=22 March 2022|archive-url=https://web.archive.org/web/20220322090546/https://www.oireachtas.ie/en/debates/debate/dail/1931-07-17/4/|url-status=live}}</ref><ref>{{cite web|url=https://www.oireachtas.ie/en/debates/debate/seanad/1931-07-23/2/|title=Report of Commonwealth Conference—Motion of Approval – Vol. 14 No. 30|date=23 July 1931|website=Oireachtas}}</ref> 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.<ref>Statute of Westminster 1931, §§1,10</ref> 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 of the Executive Council of the Irish Free State|Executive Council President]] (Prime Minister) [[W. T. Cosgrave]] objected, although he promised that 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.<ref>{{cite web|url=https://api.parliament.uk/historic-hansard/commons/1931/nov/24/new-clause-saving-with-respect-to-irish|title=NEW CLAUSE.—(Saving with respect to Irish Free State and Northern Ireland.)  |website=[[Hansard|Parliamentary Debates (Hansard)]]|access-date=18 March 2011|archive-date=20 October 2012|archive-url=https://web.archive.org/web/20121020182535/http://hansard.millbanksystems.com/commons/1931/nov/24/new-clause-saving-with-respect-to-irish|date=24 November 1931|url-status=live}}</ref> When the statute became law in the UK, [[Patrick McGilligan (Fine Gael politician)|Patrick McGilligan]], the [[Minister for External Affairs (Ireland)|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."<ref name=difp1317>{{cite web |url=http://www.difp.ie/viewdoc.asp?DocID=1317 |title=Press statement by Patrick McGilligan on the Statute of Westminster, Dublin |date=11 December 1931 |no-pp=y |page=No. 617 NAI DFA 5/3 |work=Documents on Irish Foreign Policy |publisher=[[Royal Irish Academy]] |access-date=5 January 2015 |archive-date=23 September 2015 |archive-url=https://web.archive.org/web/20150923214729/http://www.difp.ie/viewdoc.asp?DocID=1317 |url-status=live }}</ref> He went on to present the statute as largely the fruit of the Irish Free State's efforts to secure for the other Dominions the same benefits it already enjoyed under the treaty.<ref name=difp1317 /> The Statute of Westminster had the effect of granting the Irish Free State internationally recognised independence.

[[Éamon de Valera]] led [[Fianna Fáil]] to victory in the [[1932 Irish general election|Irish Free State election of 1932]] on a platform of republicanising the Irish Free State from within. Upon taking office, de Valera began removing the monarchical elements of the Constitution, beginning with the [[Oath of Allegiance (Ireland)|Oath of Allegiance]]. De Valera initially considered invoking the Statute of Westminster in making these changes, but [[John J. Hearne]] advised him not to.<ref name=Mohr2011/> Abolishing the Oath of Allegiance in effect [[Denunciation (international law)|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 Irish Unionism|Southern Unionist]] from [[County Donegal]], challenged the legality of the abolition in the [[Courts of Justice Act 1924|Irish Free State's courts]] and then appealed to the [[Judicial Committee of the Privy Council]] (JCPC) in London.<ref name="moore_v_AG"/> However, the Irish Free State had also abolished the right of appeal to the JCPC.<ref>{{cite ISB|year=1933|num=45|title=[[Constitution (Amendment No. 22) Act 1933]]|parl=ifs|date=16 November 1933|access-date=18 March 2011|archive-date=19 January 2012|archive-url=https://web.archive.org/web/20120119061408/http://www.irishstatutebook.ie/1933/en/act/pub/0045/print.html|url-status=live}}</ref> In 1935, the JCPC ruled that both abolitions were valid under the Statute of Westminster.<ref name="moore_v_AG">[http://www.supremecourt.ie/supremecourt/sclibrary3.nsf/(WebFiles)/34740D4947655F668025765E0036AE51/$FILE/Moore%20v%20AG_1935.rtf ''Moore v Attorney General''] {{Webarchive|url=https://web.archive.org/web/20120314144253/http://www.supremecourt.ie/supremecourt/sclibrary3.nsf/(WebFiles)/34740D4947655F668025765E0036AE51/$FILE/Moore%20v%20AG_1935.rtf |date=14 March 2012 }} [1935] 1 I.R.</ref> The Irish Free State, which [[Enactment of the Constitution of Ireland|in 1937]] was [[Names of the Irish state|renamed ''Ireland'']], left the Commonwealth on 18 April 1949 upon the [[coming into force]] of [[The Republic of Ireland Act 1948]].

===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 1947|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.<ref name=SydLaw/><ref>A.E. Currie, ''New Zealand and the Statute of Westminster, 1931'' (Butterworth, 1944).</ref>

===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.<ref name="comm">{{cite web  | last =Webb  | first =Jeff A.  | title =The Commission of Government, 1934–1949  | publisher =Newfoundland and Labrador Heritage Web Site (2007)  | date =January 2003  | url =http://www.heritage.nf.ca/law/commission_gov.html  | access-date =2007-08-10  | archive-date =20 December 2014  | archive-url =https://web.archive.org/web/20141220171931/http://www.heritage.nf.ca/law/commission_gov.html  | url-status =live  }}</ref> That arrangement remained until [[History of Newfoundland and Labrador#Province of Newfoundland and Labrador|Newfoundland became a province of Canada]] in 1949 following [[1948 Newfoundland referendums|referendums on the issue in 1948]].<ref name=historyquatre>{{cite web |url=http://www2.marianopolis.edu/nfldhistory/NewfoundlandJoinsCanada-Confederation1949.htm |title=Newfoundland Joins Canada) and Newfoundland and Confederation (1949) |publisher=.marianopolis.edu |access-date=3 December 2010 |archive-url=https://web.archive.org/web/20080720173301/http://www2.marianopolis.edu/nfldhistory/NewfoundlandJoinsCanada-Confederation1949.htm |archive-date=20 July 2008 }}</ref> The Statute of Westminster became applicable to Newfoundland when it was admitted to Canada.<ref name="ReferenceA"/>

===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, 1934]] — were passed to confirm South Africa's status as a fully sovereign state.<ref>{{cite book |title=International law: a South African perspective |first1=John |last1=Dugard |first2=Daniel L. |last2=Bethlehem |first3=Max |last3=Du Plessis |publisher=Juta & Co. |year=2005 |isbn=978-0-7021-7121-5 |page=19}}</ref>