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February 2013

The recent death in an Israeli prison of an Israeli-Australian citizen, Ben Zygier, has escalated into a multidimensional drama. Claims of spying and counter-spying, speculations about Zygier’s plans and their potential to damage Australian-Israeli relations, have multiplied. Allegations of anti-Semitic motives on the part of critics of Israel’s response face allegations of Israeli complicity in Zygier’s death.

In its latest iteration, the drama has moved beyond the particular, and reached into the policy of dual citizenship for Australians. More than one commentator has suggested that dual citizenship should be questioned and perhaps ruled out, in cases where the Australian citizen works for the secret service or even just the government of another country. Some have implied that dual citizenship as such should be reconsidered.

These are knee-jerk responses. Apart from their impracticality, they overlook a long and cautionary history surrounding citizenship laws. It was not until well after the Second World War that dual nationality was accepted by the international community, and then, in many countries, only reluctantly, and in some still not at all. Before then, embarrassments in diplomatic relations, the threat of divided allegiance in wartime, and the principle of single family citizenship were regularly advanced as reasons against permitting what was then called ‘double nationality’. This policy produced many hardships for individuals. Persons who had acquired citizenship by the accident of birth in a country that practiced the jus soli rule (for example, Britain and its Dominions until relatively recently, and the United States, still, as guaranteed by the Fourteenth Amendment) found themselves unable to acquire the citizenship of the country in which they lived, and, as aliens, were consequently denied the rights and security of abode that come with citizenship. Refugees, driven by crisis or persecution, were unable to take the citizenship of their country of refuge or were forced to abandon their former citizenship and therefore, in many cases, their right eventually to return home.

Under the laws of virtually every country in the world (including Australia and, notwithstanding its apparent constitutional guarantee, the United States), between the mid-nineteen century and the mid-twentieth century, women who married foreign men were automatically stripped of their citizenship, in part because it was assumed that they would acquire their husband’s citizenship, and dual nationality was not permitted. Where new citizenship was not acquired, the women were rendered stateless - one of the most pitiable experiences a human being can suffer. Countless other hardships were produced, for example, for women who were deserted by their husband, who, even in their own country, could not regain their former citizenship and, thus, were condemned to live as aliens. The decades-long campaign against these laws was finally successful, with the UN Convention on the Nationality of Married Women in 1958, but its success depended in significant part on the willingness of countries to accept dual nationality.

We recognise, today, that dual nationality is a matter of considerable convenience in the lives of those many who live and work in more than one country, that it facilitates commerce and is an core aspect of globalisation. We also need to remember that the denial of dual citizenship would have commensurable negative consequences, and would create problems going well beyond the scale of anything at issue in the Zygier case.

The constitutional framework needs to be understood. Australian citizenship is not guaranteed or defined under the Constitution, but the Commonwealth parliament has the power, under the ‘Naturalization and aliens’ provision (section 51 (xxix) ) to pass laws with respect to the acquisition of citizenship and governing the conditions on which it can be held. Australia did not permit dual nationality until 2002 (much later than most ‘western’ countries). Before then, an Australian who was naturalized in another country (or who automatically acquired a foreign citizenship, for example, by marriage) lost their Australian citizenship. Those who acquired Australian citizenship by naturalization were, however, able to hold more than one. While the Australian naturalization oath for a time required ‘new Australians’ to renounce their former nationality, it had no such legal effect. Australia could not control whether the laws of other countries did or did not permit their citizens to hold another nationality. The naturalization oath today requires a pledge of loyalty to ‘Australia and its people’; that loyalty does not have to be exclusive, nor can Australia, in practice, require it to be.

Those who are currently suggesting that Australia should reconsider its approval of dual citizenship overlook the fact that it can be acquired by naturalization, as well as by birth and parentage. It would be a dramatic, and internationally-questionable step to offer naturalization only to those immigrants who had, prior to the ceremony, legally renounced their former citizenship, rendering themselves, for a time at least, stateless. It would also be irrational to deny dual nationality to Australians by birth or parentage for fear of hostile allegiances, but not to those who acquired Australian nationality by naturalization. No one, surely, is arguing that naturalization should be prohibited.

The Constitution does include a provision in which issues of dual nationality and allegiance are addressed. Section 44 (i) disentitles a person who is ‘under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen … of a foreign power’ from standing as a candidate for either House of federal Parliament. The High Court held in Sykes v Cleary in 1992, that this extended to dual citizens and had the purpose, in the words of Justice Deane, of ‘prevent[ing] persons with foreign loyalties or obligations from being members of the Australian Parliament.’ The 1890s Federal Convention debates reveal that the concern of the framers of the Constitution was primarily with the possibility that Members of Parliament might, during wartime, hold loyalties to an enemy state. The High Court concluded that dual citizens wishing to stand for Parliament needed to take every available step to divest themselves of their non-Australian citizenship.

This may be hard on individuals who stand but are not successful, and who find themselves, thereafter, deprived of the second (or more) citizenship they once held. But, it is limited and proportionate, and serves a clearly-defined purpose. Whatever the hardship, it can be assumed that the prospect of a seat in Parliament has been weighed against the loss of citizenship status. But, in no case, does the Constitution force an individual to renounce his or her citizenship for other reasons. Nor does it require or even assume a policy of single Australian nationality or a demonstration of exclusive allegiance. This, too, should be remembered by those who are currently over-excited by the citizenship implications of the Zygier affair.

The storm of protest that greeted the Commonwealth’s Exposure Draft of the Human Rights and Anti-Discrimination Bill last month was just the latest affirmation that rights instruments, whatever their form, are inherently controversial. We tend to think of Americans and their Bill of Rights as joined at the hip, but let’s not forget that the U.S. Constitution’s framers decided against one in 1787, setting off an intense political debate before the first ten amendments were ratified in 1791. More than two centuries later, bills of rights and controversy still go together. And so it has proved in the United Kingdom, where, just before Christmas, the Commission on a Bill of Rights released its much-anticipated report: two volumes, entitled 'A UK Bill of Rights? The Choice Before Us.'

The appointment of the Commission in March 2011, ten months after the election of the Conservative – Liberal Democrat coalition government, followed a history of inconclusive inquiries and official reports: a Labour Green Paper in 2007 which proposed developing a British statement of values and a British ‘Bill of Rights and Duties’; an all party parliamentary Joint Committee on Human Rights whose report in 2008 was entitled 'A Bill of Rights for the UK?'; a second Green Paper, in 2009, on ‘Rights and Responsibilities.’ All were careful and dispassionate in tone, but in the background loomed a long-running, angry debate over the respective rights of prisoners, accused persons, asylum seekers, terrorist suspects and members of minorities, against the rights of the general public. In simple terms, the antagonists saw each other as either too soft or too hard on rights, as bleeding-heart liberals or cruel-hearted conservatives. The UK Human Rights Act (1998), the European Convention on Human Rights and the rulings of Strasbourg provided the libretto.

The Conservative Party’s 2010 Election Manifesto had included a pledge: ‘To protect our freedoms from State encroachment and encourage greater social responsibility, we will replace the Human Rights Act with a UK Bill of Rights.’ But the realities of coalition with the Liberal Democrats saw the Commission’s terms of reference confined to investigating the creation of a UK Bill which incorporated and built on the European Convention, while examining the operation of the Convention and consulting widely (including with the devolved governments) and considering ways of promoting a better public understanding of Britain’s rights obligation. Whether the existing Human Rights Act should be jettisoned was a secondary consideration.

In the eyes of many, the task was doomed from the start. The Chair, Sir Leigh Lewis, alone was a self-declared neutral, but the eight commissioners, appointed by the Minister for Justice and the Deputy Prime Minister, personified the lines of division: variously, champions of UK parliamentary sovereignty or the European Court, universal human rights or distinct national rights, together on the same platform. At times at least, each side appeared to believe that the other was getting the more sympathetic hearing. One of the commissioners resigned in early 2012, publicly claiming that the goal of repatriating rights from Europe to the UK parliament had been sidelined. Two members, Helena Kennedy and Philippe Sands, wrote a minority report, ‘In Defence of Rights’, which they re-published in the London Review of Books in January this year, claiming the opposite.

The Commission’s Report begins ominously, with the admission that, unlike many government commissions, the members already had ‘well defined views on the protection of fundamental rights.’ A tone of weariness pervades what follows: two volumes of summaries of conflicting views and surveys of how things are done in other countries. It comes as no surprise that the sole decision was to delay deciding. The impact on the devolved governments of any changes, it was agreed, needed further consideration and nothing could be done before the Scottish independence referendum in 2014. After that, a Constitutional Convention should be held. The Commission itself was wound up. The Report’s title captured the moment: no conclusions, only 'choices', and these remained to be made.

The likelihood that time and the referendum result will blur the lines of disagreement seems small. The minority report’s re-publication was accompanied by its authors’ observation that the circumstances of the Commission’s appointment ‘were not auspicious’; the composition (unimaginable in an Australian analogue) – all white, all men except for Kennedy herself, and ‘almost all lawyers and London-based’ – had undermined its legitimacy from the start. The conservative government, Kennedy and Sands wrote bitterly, had always been committed to ‘tearing up’ the UK Human Rights Act, which many Tories saw as ‘little more than a charter for foreign terrorists and local criminals.’

The Report itself is more courteous. The commissioners, it notes, had treated each other’s views with respect, and their most significant source of disagreement was over how ‘creative’ the courts should be in applying existing rights (not a small disagreement, it must be said). Nevertheless, it regretted that public debate had too often been characterised by ‘polarised and sometimes exaggerated polemic’; cases involving extraditions or deportations had attracted particularly high levels of media attention; ‘stereotypes and caricatures’ abounded. In the Report’s melancholic words: ‘Into such waters was the Commission launched.’

The sense of déjà vu is strong, at least for those who took part in Australia’s National Human Rights Consultation and the debate following its 2009 proposal that the Commonwealth should adopt a UK style Human Rights Act. The only real surprise was the relatively small number of ‘substantive’ submissions received by the Commission (around 1,000, out of a population of more than 63 million). Perhaps, however, rather than lack of interest, this may have indicated the complexities involved. Among those who responded to the public consultations, some thought that the UK Human Rights Act should not change because they feared getting something worse; others because they were happy with it; some thought it should be amended to reduce the rights it protects and others to enlarge them; still others thought a British Bill of Rights should replace it for similarly negative or positive reasons; some wanted the Act, or a new Bill, to be supplemented with a special Bill for Northern Ireland, and so on. The permutations were exhausting even to a Bill of Rights junkie.

In the end, the schisms seemed unbridgeable: between those who wanted more justiciable and legally-enforceable rights (socio-economic rights, in particular, such as education and housing) or more powerful judicial review, and those who wanted the courts to play a more restricted role in rights enforcement or to butt out altogether; between those who have faith in the courts and those who have faith in parliamentary processes; between those who wanted greater internationalisation, and those who wanted less.

Three ‘lessons’ for Australians emerge. First, public confusion about what’s at stake in adopting or declining a national bill of rights happens in other countries too. The first task of any government wanting to understand why ‘stereotypes and caricatures’ abound is to recognise this. It was evident to me, as an outsider attending the Charter 88/IPPR Constitutional Convention in Manchester back in 1991 (at which a Bill of Rights was promoted as a panacea for virtually all of Britain’s social ills), that aspirations and legal capacity are not comfortable partners. Then, during a sabbatical semester in London in 2009, as well as on my many visits over the years, I learned that ‘ordinary’ Britons – even well-educated ones - do not understand, for example, the precise differences between the UK Human Rights Act and the European Convention; between the European Union and the Council of Europe; between judicial review of legislation and judicial enforcement of laws; between international law and foreign law.

Analogous confusions can be found in Australia, although there are also important contextual differences. Unlike in Britain, where it has happened many times, Australia has never experienced a direct terrorist attack; Australian law is not subject to the supervision of an extra-territorial court; it is also geographically more isolated. The stakes are higher and the fear more present in Britain. It would be easy to overlook this in assessing the public mind or taking a position on what Kennedy and Sands call the ‘delusional idyll’ of an earlier age of national sovereignty.

Secondly, debates about rights are complicated, because the issues themselves are complicated. Rights, as the famous expression goes, ‘collide’, and so do views about their protection. No one should be surprised. One of the virtues of a democratic system is its encouragement of alternative perspectives and debate. While the issue of whether to renovate or replace the UK Human Rights Act needs to be settled at some time, the UK Commission should celebrate the diversity of views it drew forth (as Australia’s parallel debates have done), rather than regret it.

Thirdly, all those in Australia who, during the debate on the proposed Human Rights Act, worried about our ‘pariah’ status and lamented that Australia, alone in the democratic world, lacked an entrenched bill of rights, should take heart. The British feel similarly about themselves! Despite its long tradition of parliamentary democracy, it sees itself – so we learn from the Report – as standing alone among the democracies without a written national constitution in which rights can be entrenched. Even Australia comes out clean in comparison. Indeed, Australia’s lacuna is scarcely noticeable, at least to the British. Australia is barely on the radar. The Commission’s Report contains a lengthy survey of the constitutions of democratic countries and their rights protection regimes. A team of top UK Post-Graduate students, we learn, was enlisted to help with the relevant research. They would have done better to shoot off a couple of emails. The survey of our constitutional rights is confused and incomplete, and it is almost amusing to find that Australia’s Constitution Act is dated 1960 – not just once, as might happen with a typo, but twice, clearly and unambiguously. If we are fretting about how the world sees us, we can relax. Even the country whose parliament passed our Constitution Act in 1900, hasn't noticed.

While royal babies largely fall within the domain of gossip magazines and ‘celebrity’-worship, the impending birth of a child to the Duke and Duchess of Cambridge has also given birth to fascinating constitutional debates in the various Realms (being the countries of which Queen Elizabeth II is Sovereign). Agreement to change the rules of succession to the throne was relatively easily reached, in principle, in Perth at CHOGM in October 2011. Implementing that agreement has proved vastly more difficult. In Australia, Queensland has objected to the Commonwealth’s proposed legislation, not because it objects to the potential outcome in relation to royal succession, but because it is concerned that such a law will subordinate the State Crown to Commonwealth control.

The Canadian Bill

Canada, too, has its own federal problems with Quebec. The way it has sought to resolve them is, to a constitutional lawyer, quite bizarre. The Canadian approach appears to be either constitutionally invalid (purporting to return Canada’s Constitution to a pre-patriation position) or completely ineffective. Instead of enacting changes to the law of succession as it applies in relation to the Crown of Canada, it has instead introduced a Bill which merely assents to the British Succession to the Crown Bill 2013, as if the British can still legislate in relation to Canadian constitutional arrangements. Not even the British would still purport to have the power to do this. The Explanatory Notes to the British Bill make clear that it only applies to the United Kingdom, British Crown Dependencies and British Overseas Territories. It does not purport to apply to any other Realm.

The Succession to the Throne Bill 2013 (Canada) has only one substantive provision, which states:

The alteration in the law touching the Succession to the Throne set out in the bill laid before the Parliament of the United Kingdom and entitled A Bill to Make succession to the Crown not depend on gender; to make provision about Royal Marriages; and for connected purposes is assented to.

Hence, all that the Canadian Bill appears to do is to agree to a change in the law of succession in relation to the British Crown that does not in any way affect, or purport to affect, the succession to the Crown of Canada. The consequence would be that if the eldest child of the Duke and Duchess of Cambridge was a girl and a later child was a boy, the girl would become Queen of the United Kingdom and the boy would become King of Canada (assuming that neither jurisdiction had become a republic by that time).

Even more strange is the fact that the Canadian Government contends that this Canadian Bill, assenting to the alteration in the law made by the UK Bill, would have the effect of changing succession to the Crown of Canada. This is despite the fact that the UK Bill does not purport to apply to Canada and that s 2 of the Canada Act 1982 (UK) expressly provides that UK legislation can no longer apply in relation to Canada.

The most plausible argument that could be made to support this outcome would be that the Canadian Constitution requires that the person who is Sovereign of the United Kingdom be the Sovereign of Canada. Such an argument might have been based upon s 2 of the British North America Act 1867 (Imp) which previously stated that the provisions of that Act referring to the Queen extended to ‘the Heirs and Successors of Her Majesty, Kings and Queens of the United Kingdom of Great Britain and Ireland’. That provision was repealed, however, in 1893. The equivalent provision remains as covering clause 2 of the Commonwealth of Australia Constitution Act 1900 (Imp). Nonetheless, three Justices of the High Court of Australia, in the case of Sue v Hill (1999) 199 CLR 462, [93], rejected the notion that this meant that any change in the British laws of succession would affect the succession to the Australian Crown. Chief Justice Gleeson and Justices Gummow and Hayne observed that only Australian legislation could change the rules of succession to the throne with respect to Australia and that a change to the British law could have no effect in Australia since s 1 of the Australia Acts 1986 (UK) and (Cth) came into force. Section 1 of the Australia Acts states that no Act of the Parliament of the United Kingdom shall extend, or be deemed to extend, as part of the law of Australia. Likewise, s 2 of the Canada Act 1982 provides:

No Act of the Parliament of the United Kingdom passed after the Constitution Act, 1982 comes into force shall extend to Canada as part of its law.

It would therefore seem to be abundantly clear that a Canadian law that simply ‘assents’ to a British law that changes succession to the British throne, does not and cannot affect succession to the throne of Canada.

Canada and the role of the Provinces in constitutional amendment

So why have the Canadians taken this course and on what conceivable basis could it be argued to be effective? The ‘why’ is pretty easy to identify – fear of dealing with the Provinces. Section 41 of the Constitution Act 1982 (Can) states that an amendment to the Constitution of Canada in relation to ‘the office of the Queen’ can only be made by the proclamation of the Governor-General where authorized by resolutions of the Canadian Senate, the Canadian House of Commons and the legislative assembly of each Province. If s 41 applied to any Canadian legislation changing the rules of succession to the Canadian throne, resolutions of the legislative assembly in each Province, including Quebec, would therefore be required. While in Australia, it is currently proposed that each State Parliament will pass legislation requesting the enactment of Commonwealth legislation concerning succession to the Australian throne, the Canadian Government has balked at this prospect.

It is not overwhelmingly clear that s 41 would apply to Canadian legislation concerning succession to the Canadian throne. This is because it is not clear whether (a) such legislation would be an amendment to the ‘Constitution’; and (b) whether such legislation relates to the ‘office of the Queen’. [For a more detailed discussion in an article from which this blog is drawn, see: A Twomey, ‘Changing the rules of succession to the throne’ [2011] Public Law 378.]

The only judicial authority on the subject is that of the Ontario Superior Court of Justice in O’Donohue v Canada (2003) 109 CRR (2d) 1, which concerned a challenge to the law of succession to the throne on Charter grounds. Justice Rouleau decided that the matter was not justiciable because although the rules of succession were not part of the written Constitution of Canada, they were ‘part of the unwritten or unexpressed constitution’ and were therefore not subject to the Charter. Justice Rouleau also suggested at [33] that if the rules of succession with respect to the Queen of Canada were to be changed in Canada (by a court or Parliament) this would ‘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.’ While these statements were merely obiter dicta, they are enough to suggest that it is plausible that s 41 might require the agreement of all Provinces to changes to the law of succession to the Crown of Canada, although there are also good arguments for the opposite view.

Canada and the Statute of Westminster

In order to avoid facing that federal problem, the Canadian Government has instead reverted to the position prior to the patriation of the Canadian Constitution when the United Kingdom could still legislate for Canada.

Prior to the enactment of the Statute of Westminster in 1931, the United Kingdom Parliament had full power to legislate in a manner that bound its Dominions (including Australia and Canada) by laws of paramount force. Section 2 of the Statute of Westminster removed the ‘paramount force’ of such laws by permitting their local amendment or repeal and s 4 limited the future extension of British laws to the Dominions to cases where the Dominion had requested and consented to such an enactment. Section 4 provided:

No Act of Parliament of the United Kingdom passed after the commencement of this Act shall extend, or be deemed to extend, to a Dominion as part of the law of that Dominion, unless it is expressly declared in that Act that that Dominion has requested, and consented to, the enactment thereof.

While sections 2 and 4 immediately applied to Canada when the Statute of Westminster came into force, they did not apply to Australia, New Zealand or Newfoundland until adopted by the Parliament of the relevant Dominion. Because of this disparity in application, the recitals in the preamble to the Statute also provided in paragraphs 2 and 3 that:

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 is in accord with the established constitutional position that no law hereafter made by the Parliament of the United Kingdom shall extend to any of the said Dominions as part of the law of that Dominion otherwise than at the request and with the consent of that Dominion.

As Wheare has noted, these recitals and provisions declare three conventions and a legal requirement. These are as follows:

1. Dominion legislation that alters the law touching succession to the throne requires the assent of the Parliaments of the United Kingdom and other Dominions (preamble, paragraph 2 - convention);

2. United Kingdom legislation that alters the law touching succession to the throne, whether or not it is intended to extend as part of the law of the Dominions, requires the assent of the Parliaments of the other Dominions (preamble, paragraph 2 - convention);

3. United Kingdom legislation that alters the law touching succession to the throne and which is intended to extend to any Dominion, as part of its law, requires the request and consent of that Dominion (preamble paragraph 3 - convention); and

4. United Kingdom legislation that alters the law touching succession to the throne shall not extend, or be deemed to extend, to a Dominion as part of its law, unless it is expressly declared in that Act that the Dominion has requested, and consented to, its enactment (section 4 – legal requirement).

Underlying these interconnected provisions is the assumption that a Dominion may itself change the rules of succession to its own throne (because it could now legislate in a manner that was contrary to British laws, such as the Act of Settlement, that had previously applied by paramount force). If so, the Dominion should, by convention (but not as a legal requirement), seek the assent of the UK Parliament and other Dominion Parliaments. Equally, the UK Parliament could seek to change the law of succession with respect to the British throne only, in which case it should seek the assent of the Dominion Parliament. However, the UK Parliament could also change the law of succession so that it also applied to all the other Dominions as well as the United Kingdom. In those cases where s 4 of the Statute of Westminster had not yet been adopted, the third paragraph of the preamble set out a convention that it would only do so at the request and with the consent of each relevant Dominion. Where s 4 did apply, there was a legal requirement that such an Act not be deemed to extend to a Dominion as part of its law unless it was expressly declared in the Act that the Dominion has requested and consented to its enactment.

The abdication of Edward VIII in 1936 and the need to exclude him and any children he might have had from the line of succession, meant that these conventions and laws had to be put in practice. Canada, New Zealand and Australia sought to have the British law extend to them as part of their own laws. The Statute of Westminster applied in full to Canada, so conventions 2 and 3 and legal requirement 4 applied in its case. The consent and request of Canada to the enactment of His Majesty’s Declaration of Abdication Act 1936 was given by way of executive order in council on 10 December 1936 and recorded in the preamble to that Act (satisfying convention 3 and legal requirement 4). In order to meet the parliamentary assent requirement of convention 2, the Canadian Parliament later enacted the Succession to the Throne Act 1937 (Canada). It provided that:

The alteration in the law touching the Succession to the Throne set forth in the Act of the Parliament of the United Kingdom intituled “His Majesty’s Declaration of Abdication Act, 1936” is hereby assented to.

It is this provision upon which the 2013 Canadian Bill is modeled, despite it only forming a negligible part of Canada’s response to the 1936 abdication and despite subsequent constitutional changes, including the 1982 repatriation of the Canadian Constitution.

Section 4 of the Statute of Westminster had not yet been adopted by Australia or New Zealand in 1936, so it was not necessary to gain and record their request and consent for the UK law to extend to them. It extended to Australia and New Zealand of its own force without any further legal steps. Assent, under convention 2, and its mention in the preamble to His Majesty’s Declaration of Abdication Act 1936 (UK), was regarded by R T E Latham as a ‘matter of courtesy’. Australia’s Parliament was the only Dominion Parliament to indicate its assent prior to the enactment of His Majesty’s Declaration of Abdication Act. It did so, however, by way of resolutions of each House, rather than legislation, because of doubts as to whether there was a constitutional head of power that would support the enactment of legislation. New Zealand indicated its assent in advance by way of executive act, but later passed a parliamentary resolution in each House which ‘ratified and confirmed’ that assent for the purposes of convention 2. It appears that neither Dominion formally requested and consented to the enactment of the British Act, in accordance with convention 3 (although this might be implied from its assent).

As His Majesty’s Declaration of Abdication Act 1936 (UK) extended as part of the law of Canada, Australia and New Zealand as well as the United Kingdom, the effective date of the abdication in those four countries was the date of commencement of that Act, 11 December 1936, rather than 10 December, which was the day on which Edward VIII signed his declaration of abdication. The other Dominions of South Africa and the Irish Free State did not wish the British Act to apply to them. South Africa gave an initial executive ‘assent’ prior to the enactment of the British law, but then later enacted its own law, His Majesty Edward VIII’s Declaration of Abdication Act 1937. It gave parliamentary assent to the British law (in accordance with convention 2), but then enacted the changes itself as part of South African law and dated the abdication back to 10 December, being the day on which Edward VIII signed the instrument of abdication. The Irish Free State did not assent to the British Act at all. It enacted its own law, the Executive Authority (External Relations) Act 1936, implementing the abdication and changing the laws of succession to the throne on 12 December 1936. The abdication therefore took effect in the Irish Free State on 12 December 1936.

The consequence was that there were different Kings in different Dominions during the period 10-12 December 1936 marking the divisibility of the Crown in the personal, as well as the political, sense. As Wheare described it, the Commonwealth was ‘partly dismembered’ during this period.

The relevance of the Statute of Westminster today and the effectiveness of the Canadian Bill

The important lesson for the purposes of the current Canadian exercise is that the parliamentary assent, given pursuant to convention 2, only had the effect of making the change in royal succession applicable to a Dominion where that Dominion was still subject to the paramount legislative power of the Westminster Parliament (because it had not yet adopted s 4 of the Statute of Westminster). In the case of South Africa, to which the Statute of Westminster fully applied, assent under paragraph 2 of the preamble did not apply the British law to South Africa or in any way affect succession to the Crown of South Africa. It was simply a matter of courtesy. South Africa had to enact its own law to apply the change to South Africa (as it did). Alternatively, it could have taken the Canadian path of requesting and consenting to the application of the British law to it, as Canada did by way of executive order-in council. This was possible because of the application of s 4 of the Statute of Westminster.

The history of the Statute of Westminster and its application clearly shows that the proposed 2013 approach by the Canadian Parliament of simply assenting to the British Bill will not have the effect of applying the relevant change to the Crown of Canada.

Moreover, s 4 of the Statute of Westminster has now been repealed with respect to Canada (Constitution Act 1982 (Canada), s 53 and Schedule, item 17) and the United Kingdom can no longer legislate for Canada (Canada Act 1982, s 2). It is therefore extremely difficult to see how the UK changes to the rules of succession can apply with respect to the Canadian Crown and how the Succession to the Throne Act 2013 (Can) could achieve that outcome, unless Canada was to revert to its pre-patriation and pre-Statute of Westminster position of being subject to British laws of paramount force.


It is likely that the Canadian Government took the gamble of this approach in order to avoid the hassle of obtaining the agreement of the Provinces while banking upon the likelihood that no one would have the standing or motive to challenge it. Moreover, if the Duchess of Cambridge has a first-born son, it will avoid the problem of having a female monarch of the United Kingdom and a younger brother who becomes the monarch of Canada. Hence, the chances of getting by with such a constitutionally shoddy arrangement are reasonable.

Nonetheless, it shows a disappointing lack of understanding of the Crown and its divisible nature and a willingness on the part of Canadian politicians to sacrifice Canadian independence to avoid having to engage with the Provinces.