Statute of Westminster 1931

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 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.

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.

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.[5]

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.[6][7][8]

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.[9] 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 At that time, the Canadian parliament also repealed sections 4 and 7(1) of the Statute of Westminster.[5] The Statute of Westminster remains a part of the constitution of Canada by virtue of section 52(2)(b) of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,[10] while civil appeals continued until 1949.[11] 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.[12]

The Irish Free State never formally adopted the Statute of Westminster, its 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.[13] The Free State's constitution gave the Oireachtas "sole and exclusive power of making laws". Hence, even before 1931, the Irish 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.[13] 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".[14]

Motions of approval of the Report of the Commonwealth Conference had been passed by the Dáil and Seanad in May 1931[13][15][16] 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.[17] 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. 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.[18] 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."[19] 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.[19] The Statute of Westminster had the effect of making the Irish Free State the first internationally recognised independent Irish state.

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.[13] 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 Irish Free State's courts and then appealed to the Judicial Committee of the Privy Council (JCPC) in London.[20] However, the Free State had also abolished the right of appeal to the JCPC.[21] In 1935, the JCPC ruled that both abolitions were valid under the Statute of Westminster.[20] 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.

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.[5][22]

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.[23] That arrangement remained until Newfoundland became a province of Canada in 1949 following referendums on the issue in 1948.[24]

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.[25]

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 whoever 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.[3] The text of the British act states that Canada requested and consented (the only Dominion to formally do both[27]) 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 VIII 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.[28] 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 VIII 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; the same Act also brought Edward VIII's Instrument of Abdication into effect for the purposes of Irish law (s. 3(2)).[29] 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.