Volume 3 1926~1932

Doc No.

No. 251 NAI DT S5340

Extracts from a memorandum by John. J. Hearne entitled 'The principles underlying or embodied in the Colonial Laws Validity Act, 1865'1

Dublin, 3 September 1929

[matter omitted]

What is meant when it is said that the Colonial Laws Validity Act, 1865, is repugnant to the legislative independence of the member-States of the Commonwealth of Nations? Just this: that, as there is now, in fact, no supremacy of the British Parliament over the Parliament of say, Australia or the Irish Free State, the retention on the British statute book of the Colonial Laws Validity Act 1865 is inconsistent with in the sense of being irreconcilably opposed to that constitutional fact. 'The foundation of the constitution of the Empire', wrote Keith2 in 1924, 'lies in the doctrine of the absolute validity throughout the Empire of any legislation by the Imperial Parliament whatever its subject-matter. There is no such thing as an illegal Act of the Imperial Parliament . . . ; its edicts must be enforced in every court of law throughout the British Dominions . . . so far as they are made expressly applicable to those territories' 'Constitution, Administration and laws of the Empire" p. 16). That is no longer the constitutional position in the British Commonwealth of Nations. But it is the legal position under the Colonial Laws Validity Act, 1865; the plain sense and meaning of the principle underlying that Act is that the British Parliament could pass legislation applicable to those member-States of the Commonwealth to which that Act applies, if it desired so to do, while the principle embodied in that Act is that legislation passed by the Parliament of such member-States which is incompatible with such legislation of the British Parliament would still be legally pro tanto void and inoperative. In other words, the Colonial Laws Validity Act, 1865, is the legal sanction of and confirmation for what so far as the Commonwealth of Nations is concerned are effete and obsolete constitutional principles. As the principles themselves are gone the Act sanctioning and confirming them in law must go too. If any statute at all is to be passed to confirm the existing constitutional principle it should be a statute having for its underlying principle the converse of that underlying the Act of 1865, namely, a statute to the effect that no legislation of the British Parliament can operate in the territory of a member-State of the Commonwealth and that any such legislation expressed or purporting so to operate is for its purpose void and ineffective. Shall we at the forthcoming Conference go to the length of seeking a Renunciation Act similar to that of 1777 whereby the British Parliament renounced its right to levy the Tax outside the United Kingdom? I do not know. But we must, at least, go the length of seeking a formal repeal of the offending sections of the Act of 1865 with something in the nature of a renunciation declaration in the recital of the repealing statute. The Colonial Laws Validity Act, 1865, as it stands could in law be successfully invoked to invalidate a statute of the Parliament of Canada amending its constitution. [matter omitted] It is for the purpose of clearing up the position in regard to that kind of difficulty that the repeal of the offending sections of the Colonial Laws Validity Act, 1865, is necessary. If the King of Canada in his Parliament of Canada can amend the Canadian Constitution how can it be contended on the authority of an Act of the year 1865 that such legislation is invalid by reason of its incompatibility with the British North America Act, 1867? The King can legislate in his Canadian Legislature or in his Irish Free State Legislature in his capacity of King of Canada or King of the Irish Free State precisely in the same way and to the same extent as he can legislate in his British Parliament in his capacity of King of the United Kingdom: and there should now be no such thing as an illegal Act of the Parliament of Canada or the Parliament of the Irish Free State. [matter omitted] The fear of secession haunted Mr. Chamberlain in 1900. It haunted the framers of the South Africa Act in 1909. It haunted Professor Keith in 1928. And for that reason the Colonial Laws Validity Act, 1865, was held on to as the legal anchor to fasten down the Dominions to the constitutional moorings from which a tendency to drift had been observed. We are not here and now concerned with secession either in its constitutional or its political aspect. But we do think that the word itself is not the proper term to describe withdrawal from the group by one or more members of a group of international units which is neither a federation nor an Empire but a voluntary Association of independent States co-operating for their mutual advantage, their general welfare and the harmony of the world. [matter omitted] Secession is not going to be a practical issue so far as this State is concerned so long as the Nation stands upon the Treaty of 1921 and the Constitution; and should that issue ever be raised the constitutional aspects of the matter will little affect its determination. If a frank and fearless philosophy of the British Commonwealth of Nations is worked out; if the principles underlying that organization are fully acknowledged and rigidly applied to the routine relationships of the member-States towards each other and to other States in the world those other principles surviving from the Colonial Empire must be formally denied in theory and in practice effectively and finally destroyed. It is wrong to say that the British Commonwealth 'defies exact definition'. If it is true to say that 'It is a fundamental principle of the government of the United Kingdom that the whole executive authority of the Kingdom rests in the hands of the Crown, that this authority is exercised in every case on the advice of Ministers, and that for every act of the King which is done in his official capacity a Minister of the Crown is responsible' ('Imperial Unity in the Dominions', Keith p. 35) that proposition must be true of the King in his several official capacities in the member-States of the Commonwealth. [matter omitted] If 'the Crown in the British Empire is one and undivided' and the King of the United Kingdom has no special constitutional character as King of Canada or the Irish Free State and if also it is a fundamental principle that the authority of the King of the United Kingdom is exercised in every case on the advice of Ministers and that for every act of the King which is done in his official capacity a Minister is responsible you are led to one of two conclusions. You must either say that the British Government rules the Commonwealth of Nations which is not the fact or that the Kingship is divided or multiplied. When the King in his speech to the Parliament of Great Britain on Nov. 6th 1928 spoke of the Kellogg Treaty for the Renunciation of War as having been signed 'by plenipotentiaries on behalf of all my Governments' he was referring to the Government of Canada, etc., as the Governments of separate political communities of each of which he was by virtue of a special constitutional arrangement the constitutional head; else why 'plenipotentiaries'? It is not proposed to pursue this matter further here. It is adverted to at all in this place to indicate a tendency which is manifest in the new constitutional literature and the pronouncements of British statesmen namely the tendency to set up the King-obstacle to constitutional liberty when the statute-obstacle is about to be removed.

In addition to the reasons adduced in the foregoing paragraphs for the repeal of the offending sections of the Colonial Laws Validity Act, 1865, there is this other reason. It will be recalled that before the Act was passed the Law Officers advised the aid of Parliament and of the local legislatures for the purpose of removing the doubts that had arisen as to the power of the King to create courts in the British possessions by Letters Patent. If the Colonial Laws Validity Act, 1865, besides giving the aid of the British Parliament for that purpose and enabling the local legislature to do likewise, also consecrated the principle of the supremacy of the British Parliament it was because of the admitted limitations of the legislative powers of the colonial legislatures. [matter omitted] The necessity for the aid of the British Parliament to help out the limping and inadequate jurisdiction of the Colonies and the Dominions now no longer exists in regard to those Colonies and Dominions which have left their colonial and Dominion status behind. The States of the Commonwealth can now legislate freely and adequately in respect of all those matters which were outside the scope of the competency of the Colony and the Dominion. Not only, therefore, are the principle underlying the Colonial Laws Validity Act, 1865, and the principle embodied in that statute themselves repugnant to the whole theme and theory of status and Statehood as it exists in the Commonwealth of Nations to-day, but the necessity for the feeblest affirmance of those principles or the faintest remembrance of the beneficence of their application in other times has passed irrevocably away.

(Sgd) John J. Hearne

1 A further memorandum, by the Department of Justice, entitled 'Position of Saorstát Éireann as regards British Statutes which "apply or may be applied" to the other self-governing Dominions', is not printed in this volume and can be found on file NAI DT S5340/5.

2 Professor Arthur Berriedale Keith.