LIMITATIONS ON THE SOVEREIGN’S LEGISLATIVE POWER

Much has been written about the limitations of the powers of Colonial local legislatures but very litde about the extent to which the legislative authority of the Crown is similarly restricted.

First, there is repugnancy to Act of Parliament. It invalidates Orders in Council because die Colonial Laws Validity Act and the Foreign Jurisdiction Act say so. I decline to believe that Letters Patent and other instruments are not subject to the same rule. Secondly, there is the question of extra-territoriality. The extent to which laws made in a dependent territory may have extra-territorial operation is uncertain, but, whatever the true position may be, there is no apparent reason why die same general principles should not govern all legisla­tures for dependent countries, of which the Sovereign, or the Sovereign in Council, is one. There is, however, this important distinction; that the Queen can make a law for two or more territories which could not ‘ 3 & 4 W. 4, c. 85. ² 1 & 2 V., c. 67. ’ 29 Sc 30 V., c. 12.

be made by any one of them because it would then purport to operate extra-territorially.

Thirdly, to what extent is it permissible for Her Majesty to delegate her legislative powers? It is abundantly clear that when she establishes a Legislature she must necessarily delegate or create power to make laws; indeed, the delegation is so complete that a Prerogative Order in Council making an ordinary law (as distinct from a constitution) can be amended by local legislation. But how far can she authorize a legislature to amend a constitutional instrument? If the instrument is under the British Settlements Acts there is express authority to delegate. The only broad question upon which there seems to be room for reasonable argument is whether an Order in Council made by virtue of section i of the Foreign Jurisdiction Act can authorize a local legislature to amend its provisions.

Fourth, it is a well known rule that subordinate legislation cannot normally be given retrospective operation. It has been suggested that this rule applies to instruments made for overseas territories by virtue of general legislative powers conferred by Act of Parliament, but this notion betrays a misunderstanding. The rule relates to subordinate legislation properly so-called—regulations and like instruments made to supplement or give effect to the Act under which they are made. Laws made by virtue of plenary constituent or general legislative authority conferred by Act of Parliament are not subordinate legislation at all, except in an entirely different sense, and the rule has no appli­cation. It has been held¹ that a Colonial Legislature may make laws with retrospective operation; and the Crown, from whom most of them obtain their powers, must be at least equally competent.