THE SOVEREIGN
The Sovereign possesses legislative and executive power derived, directly or indirectly, from the Prerogative, general Acts of Parliament and special Acts of Parliament. I shall deal with each in turn.
A large variety of types of instrument is available, though some of them are now rarely used. In the early days of the British Empire, Orders in Council, Charters, Letters Patent, Proclamations, Governors’ Commissions, Instructions to Governors and Warrants seem to have been used more or less indiscriminately. Nowadays, each type of instrument is in practice reserved for particular purposes. An Order in Council is almost invariably employed to establish a constitution and for most other purposes; Letters Patent are principally used for the creation of offices, particularly those of GovernorGeneral and Governor, for countries within Her Majesty’s dominions and for delegating to the holders of such offices powers relating to such matters as the prerogative of mercy, the disposal of land and the appointment and dismissal of officers.
In the oldest Colonies, however, where the Crown does not possess general legislative power and elected legislative Houses are constituted under local laws, there are still Prerogative Letters Patent upon which the constitutions are to a significant extent dependent, and I shall have
occasion to refer to these later. Thus, the Bermuda Letters Patent of 1888, as amended in 1953 and 1955, not only constitute the office of Governor and delegate powers to him; they also establish the Executive Council, set up the Legislative Council (the Upper House of the Legislature) confer the power to make laws and provide for disallowance. There are similar Letters Patent for the Bahamas and other Colonies in the Caribbean area.
Royal Instructions to the Governor are principally used to supplement Orders in Council and Letters Patent.
It has from time to time been said that they are not law; but that is, to say the least, gross exaggeration. In general, Royal Instructions have the force of law. The only clear exceptions are statutory, notably section four of the Colonial Laws Validity Act, 1865,1 which lays down that no Colonial Law shall be void or inoperative by reason only of any Royal Instructions ‘with reference to such Law or the Subject thereof’. The section is very limited in its scope. As it applies only to instructions with reference to the law or its subject matter, it cannot extend to instructions regarding, for instance, the composition of the legislature. This section is of importance in relation to the giving of the Royal Assent and the reservation of Bills for Her Majesty’s pleasure. As a rule, the Governor is given a general discretion to assent, refuse assent or reserve a Bill, but is required to reserve, or to assent only if certain conditions are satisfied, in the case of Bills hilling within prescribed categories. If this requirement is in Royal Instructions it is caught by die section and if the Governor in fact assents when he should not have done so, his assent will, by virtue of the section, be valid. But that is not so if the requirement is in some other instrument, and Bills of first importance, such as those amending the constitution, have often been omitted from Royal Instructions and inserted in Orders in Council or Letters Patent as exceptions to the Governor’s general discretion to assent, so as to ensure that no Bill within the prescribed class can become law until the United Kingdom Government has an opportunity to consider its terms.Another distinction, not without importance, is that between Royal Instructions under the Royal Sign Manual and Signet, which are approved in draft by Order in Council and printed, and less formal instructions, conveyed as a rule by despatch or telegram through the Secretary of State to a Governor. The former are used only for giving instructions which have continuing operation, the latter rather for giving instructions of a more or less administrative nature.
Sometimes * 28 & 29 V., c. 63.a provision in an Order in Council or Letters Patent requires a Governor to exercise powers or duties in accordance with instructions either under the Royal Sign Manual and Signet or through a Secretary of State. One result of this is that instructions under the Sign Manual and Signet can be, and occasionally have been, varied by instructions conveyed by despatch or telegram.
I now propose to consider the various Prerogative and statutory powers vested in the Sovereign in relation to different classes of territories. One major distinction which must be constantly borne in mind is that between the constituent power—the power to establish, amend or revoke constitutions for overseas countries—and the power to make law of other kinds, from the control of bicycles to the implementation of treaties.