LEGISLATIVE POWER
Returning to the United Kingdom machinery, die most obvious need is to ensure unlimited legislative freedom. The limits to be removed are threefold. First, under the Colonial Laws Validity Act, 1865, laws passed by the legislature of a Colony are invalid if they are repugnant to United Kingdom legislation and, for reasons which it would be out of place to discuss now, this rule must apply to other dependent territories.
That rule has to be abolished. Secondly, the United Kingdom Parliament has an unquestionable right to legislate for a dependent territory and that must be terminated. Thirdly, there is the question of extra-territoriality.The first two obviously need an Act of Parliament, because the powers of Parliament are themselves affected. Sections 2 and 4 of the Statute of Westminster provide models which have been closely followed in all other cases where they were needed—they will not be found in the Acts which secured the independence of countries outside Her Majesty’s dominions, the Federation of Malaya, and Cyprus, a republic.
Repugnancy. Section 2, which deals with repugnancy, is of special importance. Long before the Statute of Westminster, it was an established convention that the United Kingdom Parliament did not legislate for the Dominions without their consent, a convention which would have continued to be observed even if section 4 had not given it statutory form. But no mere political arrangement could get rid of the Colonial Laws Validity Act, 1865, and its restrictions on die powers of Colonial legislatures. Section 2, therefore, provided that that Act should not apply to future Acts of Dominion Parliaments and that no future law made by a Dominion Parliament should be void on the ground of repugnancy to the law of England or to the provisions of any existing or future United Kingdom legislation; and that the Parliament of a Dominion should have power to repeal or amend any such legislation in so far as it is part of the law of the Dominion.
A question which has given rise to some discussion is whether in section 2 the words ‘any existing or future Act of Parliament of the United Kingdom’ include the Statute of Westminster itself, so that
that Act, in its application to a Dominion, can be amended or repealed by the Parliament of the Dominion. It can be strongly argued that it does, but section 6 (2) of the Indian Independence Act, 1947,1 avoided any doubt by using the expression ‘this or any existing or future Act’. The Ceylon Independence Act, 1947,2 reverted to the words of the Statute of Westminster as also did the Ghana Independence Act, 1957? The Nigeria Independence Act, i960,4 the Sierra Leone Independence Act, 1961,3 and the Tanganyika Independence Act, 1961,6 in effect followed the example of the Indian Independence Act by referring to ‘any Act of the Parliament of the United Kingdom, including this Act’. These differences in words do not, of course, necessarily mean that there is a difference in operation and in fact the greater part of the Ghana Independence Act has been repealed by Act of the Ghana Parliament.
Powers of United Kingdom Parliament. Section 4 of the Statute of Westminster lays down that no future United Kingdom Act shall extend or be deemed to extend to a Dominion as part of the law of the Dominion unless it is expressly declared in the Act that the Dominion has requested, and consented to, the enactment thereof. It was copied without change in the Ceylon and Ghana Independence Acts. But the Indian Independence Act omitted the reference to request and consent, and substituted the words ‘unless it is extended thereto by a law of the Legislature of the Dominion’. In the cases of Nigeria, Sierra Leone and Tanganyika, the request and consent phrase is simply omitted.
The Indian Independence Act also adds that no Order or other instrument made after the appointed day under an existing Act shall extend to either of the new Dominions as part of their law.
There is logic in this; but though the point is of little practical importance, this addition might have its disadvantages, for it renders inoperative machinery which might on exceptional occasions be useful. Speaking generally, it has not been the practice at the time of independence to repeal existing Acts of Parliament in their application to the newly independent country—that is a matter for subsequent action by the Government and Parliament of that country themselves if they think fit—and some United Kingdom statutes could in very special drcum-stances prove helpful, provided political objections to their use were not insuperable. For example, the British Settlements Act might provide a simple method of transferring a territory to the administration of some other Member of the Commonwealth. Or take the case of a citizen of another Commonwealth country, perhaps a member of their armed forces, sentenced to imprisonment in a Colony, who, for some good reason, ought to be transferred to his own country to serve his sentence. The only available means of transferring him would appear to be an Order under the Colonial Prisoners Removal Act, 1884.
Closely, but not exclusively, connected with section 4 of the Statute of Westminster is section 11 which, for subsequent legislation, removed Dominions from the definition of Colony in the Interpretation Act, 1889. This, too, has been copied into Independence Acts.
Extra-territoriality. Following section 3 of the Statute of Westminster, they also deal with the vexed question of extra-territorial legislation. It is questionable whether this is necessary. That the legislature of a dependent territory has some extra-territorial power is dear; only its limits are doubtful. This is recognized in the common form section which dedares that the legislature has ‘full power’, not merely ‘power*, to make laws having extra-territorial operation. But whatever the true rule may be, the limitations attach only to the legislature of a dependent territory, and it seems to follow that they would be automatically abolished by the grant of independence.
The indusion of this provision in the Statute of Westminster was a different matter. The Act did not make a clean cut between dependence and independence. As a matter of political relationships, it amounted to statutory confirmation of established het. The Dominions had already, by a gradual process, attained their independence. The Statute could not therefore terminate their dependence by the good resounding dedaration, found in Independence Acts, that after the appointed day Her Majesty’s Government in the United Kingdom shall have no responsibility for the government of the country concerned, and no one could say that particular marks of dependence had ceased, as a matter of law, to adhere to the older ‘Dominions’ at a particular time or at alt This declaration in the Independence Acts leaves no room for argument. However, no doubt it is a sensible and harmless precaution to include this provision, if only because it is apt to be regarded as one of the chief monoliths in the Statute of Westminster and its omission might possibly be misunderstood.