Talk:Statute of Westminster 1931

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Contents 1 Where did it get the name? 2 Preamble 3 8 July 2005 4 Realms created after 1931 5 SoW as "obsolete" 6 Canada Table

[edit] Where did it get the name?

What I always have wondered is where the act got its name. Out of all the acts passed in westminster, whose crazy idea was it to call this one the statute of westminster????

Perhaps because Article 12 reads: "This Act may be cited as the Statute of Westminster, 1931"? --Chris Bennett 00:57, 30 November 2005 (UTC)

That doesn't really answer the question. Doops | talk 08:15, 11 December 2005 (UTC)

Article said

The British North America Act and the Constitution Acts of Australia and New Zealand were specifically excluded from the scope of the Statute's principal clauses, requiring British Parliamentary ratification of any amendment to those countries' constitutions, involving as they treaty matters or relations between federal and provincial/state governments.

I don't know about the case of Canada, but in the case of Australia the above is incorrect. Australia has had the power to ammend its own consititution, without needing any approval from the UK parliament, ever since 1901, and has in fact done so on several occasions. The Statute of Westminister did provide, however, that the Commonwealth Parliament would not have the power under the Statute to ammend the Australian Constitution; but that was done to prevent it from circumventing the provisions on ammendment contained in the constitution, not to retain it as a power of the British Parliament. -- SJK

Treaty of Westminster

Edit of 23 May 2005 says "The Statute is sometimes referred to, especially in the former dominions, as the Treaty of Westminster." I've never heard this, it certainly isn't true in Australia, in my experience, and I'm not inclined to believe it. Can anyone cite a documented use of this terminology? -- Chris Bennett

[edit] Preamble

It is true that in statute law the preamble is not binding. However, it seems that where the Statute of Westminster has been included as part of a codified constitution, as in Canada, it is binding as in the case of O'Donohue v. Her Majesty the Queen, Judge Rouleau dismissed O'Donohue's challenge on the strength of the Statute of Westminster's preamble. AndyL 8 July 2005 17:39 (UTC)

• A preamble normally does not include enforceable provisions, but it is part of the legislation: From the Interpretation Act (Canada): 13. The preamble of an enactment shall be read as a part of the enactment intended to assist in explaining its purport and object. Peter Grey 8 July 2005 17:48 (UTC)
• Rouleau referred to the preamble of the 1867 Constitution Act. Peter Grey 8 July 2005 18:01 (UTC)

Either way, gbambino is wrong. AndyL 8 July 2005 17:54 (UTC)

"*Rouleau referred to the preamble of the 1867 Constitution Act."

In Clause 31 of his ruling he quotes the preamble to the Statute of Westminster.:

[31] By the Statute of Westminster, 1921 (U. K.) 22 and 23 Geo.5, c.4 the United Kingdom agreed that it would no longer impose British statutes on the Various dominions without their accord. It also provided that the British monarch would continue to be the monarch of various Commonwealth countries including Canada. In order to recognize that the United Kingdom would no longer impose British statutes on the dominions. but also to ensure that the rules of succession which had previously been imposed by the United Kingdom on those Commonwealth countries continued to he consistent, the British Parliament set out in the preamble to the Statute of Westminister the following:

And whereas it is meet and proper to set out by way of preamble to this Act that, inasmuch as the Crown is the symbol of the free association of the members of the British Commonwealth of Nations, and as they are united by a common allegiance to the Crown. it would he in accord with the established constitutional position of all the members of the Commonwealth in relation to one another that any alteration in the law touching the Succession to the Throne or the Royal Style and Titles shall hereafter require the assent as well as of the Parliaments of all the Dominions as of the Parliament of the United Kingdom:

[32] The Statute of Westminster is a part of the Constitution of Canada by virtue of it being listed in the schedule to the Constitution (Constitution Act, 1982, s. 52(2)(b)).

[33] As a result of the Statute of Westminster it was recognized that any alterations in the rules of succession would no longer be imposed by Great Britain and, if symmetry among commonwealth countries were to he maintained, any changes to the rules of succession would have to be agreed to by all members of the Commonwealth. This arrangement can be compared to a treaty among the Commonwealth countries to share the monarchy under the existing rules and not to change the rules without the agreement of all signatories. While Canada as a sovereign nation is free to withdraw from the arrangement and no longer be united through common allegiance to the Crown, it cannot unilaterally change the rules of succession for all Commonwealth countries. Unilateral changes by Canada to the rules of succession, whether imposed by the court or otherwise, would be contrary to the commitment given in the Statute of Westminster, would break symmetry and breach the principle of union under the British Crown set out in the preamble to the Constitution Act, 1867. Such changes would, for all intents and purposes, bring about a fundamental change in the office of the Queen without securing the authorizations required pursuant to s. 41 of the Constitution Act, 1982.

Rouleau thus treats the preamble as being leagally binding. AndyL 8 July 2005 18:09 (UTC)

• Check [38] for the actual grounds for dismissal, as opposed to background. Peter Grey 8 July 2005 18:14 (UTC)

[edit] 8 July 2005

I changed the article back because these changes seem unfocused, and perhaps not encyclopedic. I suggest working out the change here on the talk page and then editing the article itself. Peter Grey 8 July 2005 18:20 (UTC)\

That's fine. Gbambino initiated the changes by deleting something he shouldn't have deleted. I'm find with the status quo ante. AndyL 8 July 2005 18:23 (UTC)

I question what relevance the following phrase has in relation to this article: "In any case there can be no effective restriction on the powers of those Parliaments which recognise the doctrine of Parliamentary supremacy, namely the United Kingdom and New Zealand, within their national territory." As the preamble to the Statute is not legally binding in any Realm then what difference does it make in this matter if New Zealand recognises Parliamentary supremacy and Canada does not? The only thing Parliamentary supremacy is relevant to is how easily a country can alter its own copy of the Statute -- for the U.K. and New Zealand it takes merely an Act of Parliament, for Canada it takes the agreement of 10 provincial legislatures and the federal Parliament, in Australia it is something similar... The inclusion of the above phrase, and the wording of it, implies that New Zealand, the U.K., etc., are not bound by the Statute because of their adherence to Parliamentary supremacy, whereas Canada, Australia, and other Realms are bound, and must therefore obediently and unquestioningly follow any changes the U.K. or New Zealand may make to the line of succession. Jonathan David Makepeace, another republican associated with Citizens for a Canadian republic, tried to argue this before on Talk:Monarchy in Canada, and it is, of course, wrong. --gbambino 14:43, 11 July 2005 (UTC)

The myth is that since the legislative powers of Parliament in the UK are unlimited, it can amend the Statute of Westminster and then somehow the leap is made to implying that the versions outside the UK would change with it. If you think of Parliament abrogating the 1783 Treaty of Paris, and then going on to, say, abolish the Commonwealth of Pennsylvania, you can see how silly the idea really is. Peter Grey 15:01, 11 July 2005 (UTC)

I agree, and thus my proposed change is that the full text quoted above be removed from the article. It really has no relevance, aside from attempting to mislead readers into thinking Canada and Australia as subservient to the British (and, even more bizzarre, the New Zealand) Parliament. --gbambino 15:29, 11 July 2005 (UTC) Surely it can only be equally bizarre? Peter Grey 20:34, 11 July 2005 (UTC)

I put up a wording based on -- what else -- Justice Rouleau's ruling. (In parentheses since it's an aside.) Peter Grey 15:58, 11 July 2005 (UTC)

Much better. Well done! --gbambino 17:36, 11 July 2005 (UTC)

[edit] Realms created after 1931

For those realms such as Belize, Jamacia, Barbadous etc- can the Statute of Westminster Act 1931 apply? The Statute was never amended. Astrotrain 19:26, August 26, 2005 (UTC)

It doesn't apply per se, but the Acts that gave those places independence would either include it by reference or include similar terms. (this is just an educated guess, by the way, I haven't checked what they actually do) Morwen - Talk 21:44, 31 December 2005 (UTC)

[edit] SoW as "obsolete"

"The Statute became domestic law within each of the other Commonwealth Realms after the patriation of the particular Realm's constitution, to the extent that it was not rendered obsolete by that process."

In which Commonwealth Realm has the Statute of Westminster been rendered useless? --gbambino 15:01, 31 July 2006 (UTC)

Not "useless", "obsolete". As stated in the following paragraph, "Its residual constitutional powers have been superseded by subsequent legislation. " An example is given in the last section of the "Equality Provisions" section of this article: the SoW's provisions regarding the relationship of the Australian states to the UK parliament certainly no longer apply, having been superseded by the Australia Act. That act also removed the power, reserved to the UK parliament in the SoW, for the UK to legislate for Australia with Australia's consent.

The onus is really on you to show that the SoW has any residual place at all in at least Australian domestic law, given the passage of the Australia Act. I wouldn't be at all surprised if the SoW also has no current role in the domestic law of Canada and New Zealand. --Chris Bennett 15:29, 31 July 2006 (UTC)

Onus? I'm simply asking a question, not launching an attack. I'm not aware of many of the subtle technicalities of law in various countries; thank you for explaining some about Australia.

No attack. All I was saying was that you added the sentence "The Statute became domestic law within each of the other Commonwealth Realms after the patriation of the particular Realm's constitution." without citing any evidence it is true, and surely the onus was on you to do so. Rather than attacking you for it, I qualified the sentence, because I knew it wasn't completely accurate (not to mention that other statements in the article contradicted it). But in fact I don't know of any evidence it is true at all.

However, is there not one key part of the Statute of Westminster which continues to have effect in every Realm? Namely, the preamble, which outlines: "it would be in accord with the established constitutional position of all the members of the Commonwealth in relation to one another that any alteration in the law touching the Succession to the Throne or the Royal Style and Titles shall hereafter require the assent as well of the Parliaments of all the Dominions as of the Parliament of the United Kingdom." It was referred to as recently as 2003, in the ruling of Ontario Superior Court Justice Rouleau on a challenge to the Act of Settlement within the Canadian Constitution, which also still contains the Statute of Westminster.

THe preamble is not part of the act and therefore doesn't count. Whether Rouleau's ruling is part of Canadian constitutional law is up to Canada to decide, but surely it will do so on the basis of the Canadian constitution as it now exists, not on the basis of the SoW. Anyway, the current text doesn't say that the SoW is obsolete, only that some or all of it is, depending on whether we are talking about Australia, Canada, New Zealand or the UK, who are the only surviving parties affected by the statute.

If the provision that a country's parliament cannot unilaterally alter the line of succession is still a functioning rule within each Realm, then, though some parts of the Statute have been rendered obsolete by subsequent legislation, the Statute is not itself obsolete (which I would think is a synonym for "useless"), even if the provision is only outlined in the preamble. --gbambino 15:50, 31 July 2006 (UTC)

That is a remarkably utilitarian definition of "obsolete", and surely there is much that is useless that is not obsolete. --Chris Bennett 18:21, 31 July 2006 (UTC)

My understanding is that it depends on the country in question. The statute was repealed in New Zealand law by the Constitution Act 1986, and I think the Australia Act 1986 also did the same thing. I think Dicey once said that "once freedom is granted, it cannot be revoked"; so the Statute of Westminster probably is "obsolete" in that freedom has been granted. --Lholden 21:45, 31 July 2006 (UTC)

The Australia Act repealed some sections of the Statute, as much as they were already adopted. However, I am also disturbed by the gbambino's sentence, as I don't see that the "patriation of the constitution" concept necessarily applies outside Canada. JPD (talk) 09:22, 13 October 2006 (UTC)

[edit] Canada Table

The Statute applied to multiple countries that were part of the British Empire, so why is there a table at the bottom that applies to Canada? I think it shouldn't be there, or every country that this applied to should be there.