GENERAL ACTS OF PARLIAMENT
So much for Prerogative rights of legislation. The only two important Acts of Parliament of wide general application are the British Settlements Acts and the Foreign Jurisdiction Acts.
1 P. 33. 1P. 10, cf. pp. 222-3.
The British Settlements Acts 1887 and 1945' The principal purpose and effect of the British Settlements Acts was to alter the common law rule that, in a Colony acquired by settlement, though the Crown can, under the Prerogative, legislate in the constituent field, it cannot make laws of other kinds.
The only problem of considerable interest is the combined effect of sections 2 and 3 in their original form; and the interest is not merely academic. The question is not easy to explain unless you know the sections well, but for those who do not I will try to simplify them.
Section 2 enables Her Majesty to make Orders in Council and thereby ‘establish laws and institutions’ for a British Settlement. Section 3 (now amended) originally empowered the Queen to make Letters Patent and by them to delegate any of her powers under the Act exercisable by Orders in Council to ‘three or more persons within the Settlement’, i.e. she could establish a local law-making body. The problem is this: could she, notwithstanding this express provision in section 3 for delegation of law-making powers to three or more persons in the Settlement, set up some other kind of legislature under section 2?
The question has been important because delegation to three or more persons within the Settlement may be inappropriate or even impossible in three types of cases: first, where special legislative authority is required to be conferred upon the Queen’s representative alone; secondly, where a legislature is to be established for a territory only part of which was a British Settlement; and thirdly, where power has to be vested in a central authority to make laws for a small or remote territory, such as a Pacific island, which happens to be a British Settlement.
The difficulty no longer exists because the British Settlements Act, 1945, solved it by substituting for the reference in section 3 to three or more persons within the settlement a reference to any specified person or authority. But was the amendment necessary? And were Orders in Council previously made under section 2 conferring lawmaking powers valid or not? Section 2 empowers Her Majesty in Council to establish laws and institutions. There is no apparent reason why, if that section had stood alone, a legislative body, composed of such persons and sitting in such place as Her Majesty thought fit, should not be established by Order in Council under the section. An Order in Council constituting a legislature is a ‘law’; and a legislature is an ‘institution’.
1 50 & 51 V., c. 54; 9 G. Ross Dependency. When in 1923 the Ross Dependency was placed
1 6 G. 5, c. 9.
under the authority of the Government of New Zealand, legal opinion must have been that a legislature, consisting of one person not within the settlement, could be established under section 2 of the British Settlements Act. The Dependency is a sector of the Antarctic, British title to which rests on discovery plus occupation by small parties of scientists. An Order in Council1 invoking the British Settlements Act conferred legislative powers on the Governor-General of New Zealand. Professor Berriedale Keith2 challenged the validity of this Order and he appears to have claimed credit for the Pacific Islands Regulations (Validation) Act, 1916. He does not seem to have considered whether there was room for a view different from his.
The original vires of the Order can be supported on three grounds. The first two are the same as in the case of Article 108 of the Pacific Order in Council: that under the British Settlements Act legislative power can be given to a single person not within the settlement, and that the Order in Council may be treated as an exercise of die Prerogative.
The third raises a new question on the interpetation of the British Setdements Act which affects only the Ross Dependency and any other similar territory. It may be argued that such a tract of land is not a British Settlement for the purposes of the Act, in which case one can rely upon the Prerogative. The Dependency is within the plain meaning of the definition of ‘British Settlement’ in section 6 of the Act because it was not ceded or conquered; but an interpretation not in accordance with the plain meaning of the words is permissible if it is required to carry out the stated purposes of the Act. The purpose of the British Setdements Act, 1887, according to the long tide, was to provide for the government of possessions ‘acquired by setdement’; places, the preamble tells us, to which Her Majesty’s subjects have resorted and in which they have setded. A handfill of scientists spending a few chilly months in the Antarctic may be said to ‘resort to’ the place, but they certainly cannot be said to have setded, and by no stretch of language can they be called settlers. There can be no room for doubt that, in passing the Act in 1887, Parliament had not in contemplation territories like the Ross Dependency.The legal problem is of general interest; but, so far as the Ross Dependency is concerned, it seems now to be academic. The territory has been the subject of New Zealand legislation which is not likely to be successfully called in question in any Court.
* S.R.0.1923, p. 712.
2 Responsible Government in the Dominions, Vol. I, p. xviii. Vol. 2, pp. 792,1039-40.
West Africa. One final shot at the poor drafting of this Act. It was plainly meant to apply to British territories in West Africa.1 Yet most of them seem to have been excluded from the Act by the definition. The Colony of Nigeria was undoubtedly acquired by cession; the Colonies of Sierra Leone and Gambia are doubtful cases; Ashanti was conquered. The only West African territory clearly acquired by settlement was the Gold Coast Colony.
So I feel some confidence in suggesting that the definition is not to be taken too seriously.The Foreign Jurisdiction Act, 1890. This Act is of great importance for it is invariably relied upon for the exercise of jurisdiction outside Her Majesty’s dominions. I must, however, restrict myself to four points of particular interest.
First, there is the well known principle that, if jurisdiction has in fact been exercised, it cannot be challenged in the Courts. Until recently, the authorities do not seem to have been altogether clear, but in Nyali Ltd. v Attorney-General,1 Denning L. J., as he then was, stated the rule in terms of the utmost clarity.
I have already mentioned my second point: that section 1 of the Act of 1890 applies the Prerogative itself; apparently with the result that Orders made by virtue of section 1 are Prerogative Orders and not Statutory Orders.
This leads me to my third point. Section 1 applies in their entirety the extensive Prerogative powers applicable to conquered and ceded Colonies, and it does not in terms provide for the making of Orders in Council. From this it seems inevitably to follow that, although Orders in Council have always, or nearly always, been used, foreign jurisdiction, like jurisdiction in conquered or ceded territory, may lawfully be exercised by means of Letters Patent.
My fourth point is merely one of nomenclature. The early Foreign Jurisdiction Acts referred to countries outside Her Majesty’s dominions. The draftsmen of the Act of 1890, for the sake of brevity, used and defined the shorter expression ‘foreign countries’. The term is still in frequent use, but even if it was appropriate in 1890, which I doubt, it is now an absurdity as regards the great majority of the countries concerned and its perpetuation, particularly in Acts of Parliament, is, I suggest, not only unfortunate but unnecessary.
* Ridges, Constitutional Law, 8th edn., p. 479; Hood Phillips, Constitutional Law, 2nd edn., p.613; Anson, Law and Custom of the Constitution, 4th edn. Vol. 2, Pt. 2, p. 64.
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