THE THRONE

New Zealand Herald, Volume LXXIII, Issue 22595, 7 December 1936, Page 11

THE THRONE

LAW OF SUCCESSION " ' V t DOMINIONS' RIGHTS CONSENTING TO CHANGE WESTMINSTER STATUTE While pointing out that under the Statute of Westminster the consent of all Parliaments of all the Dominions and of the United Kingdom is required to effect any legislative movement affecting the succession to the Throne or of the Royal Stylo and Titles, a well-known barrister-at-law in Auckland expresses the opinion that if a Dominion refused to concur with the Imperial Parliament, it would be within the competence of that body to give legislative effect to its proposals and to declare that the law should apply to the whole Empire, including the dissenting Dominion. It was explained by the barrister that the Statute of Westminster received the Royal assent on December 11, 1931, and came into force on that date. It effected changes of a momentous character in the relations between the British and Dominion Parliaments. It emphasised the development of the constitutional life of the Dominions and was the recognition of the attainment by them of a wider political capacity.

Preamble to Statute of Westminster The Statute contained a series of preambles, the second paragraph of the preamble being as follows:—"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 members of the British Commonwealth of Nations, and as they are united by a, common allegiance to the Crown, it would be in accord with the established constitutional position of all the members of the Commonwealth in relation to one another that any alterations in the law touching the Succession to the Throne or the Royal Style and Titles abafl hereafter require the assent as w?',l of the Parliaments of all the Dominions as of the Parliament of the United Kingdom.' 5 It was interesting to consider t!.v, possibilities that might arise in the event of any legislative movement affecting the succession to the Throne, or of the Royal Style and Titles. The consent of all Parliaments of the Dominions and of the United Kingdom was required to efieet such alteration. If this was to be regarded as something more t.ian a pious ejaculation—if it was to tie treated as a positive legislative mandate—what position would arise if the Parliament of one of the members of the "Commonwealth" refused to assent to a proposed change? If a position of stalemate should arise could the Imperial Parliament meet the difficulty by modifying legislation, made applicable to the assenting Dominions?' This necessitated e. consideration of section 4 of the Act, which was in the following terms: —

"No Act of Parliament of the United Kingdom passed after the com. mencement of this Act shall extend, or be deemed to extend, to a Dominion as part of the law of thai Dominion, unless it is expressly declared in that Act that that Dominira has requested and consented to the enactmemt thereof." Authority of Imperial Parliament "It has hitherto been an accepted principle that it was within the competence of the Imperial Parliament to make laws for any part of the King's Dominions," continued the legal authority. "This; principle was emphatically expressed in the American Colonies Act, 1766, and it was important to bear in mind that when this statute was passed by the Imperial 1 arliament the colonies and legislatures had claimed the sole and exclusive right of imposing taxes. The statute was therefore an assertion of the paramountcy of the Imperial legislature and this represented the position until the passing of section 4 of the Statute of Westminster. This being so, the purport of the section is to qualify that paramountcy, by providing that 110 future legislation of the United Kingdom shall apply to a Dominion unless that Dominion has requested and consented to the enactment thereof.

"At the same time, it may be emphatically questioned whether the Imperial legislature can renounce its right to legislate for any part of the King's Dominions. The theory pertaining to the Parliament of the United Kingdom is that it is omnipotent, so far as any human institution can be omnipotent. So much is this the* case that no Parliament can fetter the freedom or capacity of a subsequent Parliament. This is a fundamental necessity. The well-being, perhaps the very existence, of a supreme legislative body, depends upon the maintenance of this, principle. Hence, in the event of any Dominion refusing to concur with the Imperial Parliament in any question touching the succession to the Throne or the Royal Style and Titles, it would be within the competence of that Parliament to proceed to give legislative effect to its proposals and to declare that the law so adopted should apply to the whole Empire, including the non-consenting Dominion. The legislative body that had power to enact has ex vi termini povrer to repeal, since a repeal is an enactment."