Thank you for that link to Northern Piper’s post. You’re right, it is indeed an excellent answer to my question. I’m learning much in this thread about the establishment of Canadian independence.
The Statute of Westminter automatically went into effect in Canada, South Africa, and the Irish Free State. Australia and New Zealand had pass domestic legislation to adopt it (in 1942 and 1947 respectively). Newfoundland reverted to colonial status without ever adopting it.
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Even after this formal independence, many countries continued to allow the UK’s Privy Council to act as a final court of appeal for their judiciaries. New Zealand only ended this in 2004, and there’s still these countries that use it today:
Antigua and Barbuda
The Bahamas
British Indian Ocean Territory
Cook Islands and Niue (Associated States of New Zealand)
Grenada
Jamaica
St Christopher and Nevis
Saint Lucia
Saint Vincent and the Grenadines
Tuvalu
the Republic of Trinidad and Tobago
Kiribati
Mauritius
That’s interesting. I see that Jamaica for one has the death penalty while of course the UK, as a member (at least for the moment) of the EU is forbidden by treaty from subscribing to that penalty. One would think that fact might have some prejudicial bearing on death penalty appeals from Jamaica or any of the other countries above which retain capital punishment.
British Indian Ocean Territory is a British overseas territory - not an independent country.
The European Convention on Human Rights (Protocol no. 13) prohibits member states from implementing the death penalty in any circumstances. The UK ratified that protocol with effect from February 2004. The obligations arising under that protocol are independent of the UK’s membership of the EU.
The Privy Council decides appeals from, e.g., Jamaica on the basis of Jamaican law, not UK law, so the fact that a particular penalty isn’t available under UK law is irrelevant; the only question that matters is whether it is available under Jamaican law.
But, yes, an awful lot of the criminal appeals that make it to the Privy Council are appeals in death penalty cases from various Caribbean jurisdictions, and the Council does scrutinise these extremely strictly, and often overturns death penalty sentences imposed, and upheld on appeal, by Caribbean courts.
I think Aldiboronti raises an interesting point. Yes, the JCPC is applying Jamaican law, but as an organ of the British government, isn’t it bound by the European Convention? If so, if it upholds a death sentence, isn’t the British government in breach of the Convention?
As I recall, that was the analysis used in the case of the British Airways employee who lodged a religious freedom complaint against her employer. The English Court of Appeal dismissed her complaint, and she then successfully challenged that ruling in the European Court, which held that the English Court of Appeal, an organ of the British government, had infringed the Convention by not properly protecting her rights under the Convention in the ruling.
Seems like that same analysis could be used to bar the Judicial Committee from upholding a death sentence.
Well, except that the English Court of Appeal is an organ of the UK in part because it interprets and applies UK law.
It’s true that the Privy Council is constituted under UK law, but when it hears appeals from, e.g, Jamaica, it’s applying Jamaican law, and its power to do so is derived from Jamaican law; the UK Parliament cannot validly or effectively confer on the Privy Council the function of ruling on appeals from Jamaica.
So, when the Privy Council hears a Jamaican appeal, doesn’t it do so as an organ of Jamaica, not as an organ of the UK?
But it is part of the government of Britain: it is constituted by the British prerogative, and by British statute law. The people who exercise the powers of the JCPC are all appointed by the British government and paid by the British government. Jamaica has nothing to do with the institutional structure of the JCPC. It has simply chosen to continue to accept the jurisdiction of the JCPC as a final appellate body. And, the procedural rules for appeals to the JCPC are set by the JCPC under the authority of the British statute.
Yes, it can in the broadest sense. The UK Parliament tomorrow could repeal the Judicial Committee Act, retire the members of the Committee, and cease to provide the services of an appellate body for Jamaica.
There is nothing Jamaica could do to prevent that.
Ultimately, the JCPC is an organ of the British government. It only has jurisdiction to hear appeals from the Jamaican courts because British law gives it that jurisdiction.
But it’s also part of the government of Jamaica. Hearing appeals in Jamaican litigation is an aspect of governing Jamaica, not an aspect of governing the UK.
What we have here is a body constituted under UK law which in some contexts acts as an organ or emanation of the UK, and in others as an organ or emanation of Jamaica. As far as EU law is concerned, in determining whether a particular body is to be treated as an organ or emanation of the state what matters is now how its constituted but what it does, what its functions are, and where it derives it functions from. The legal form of the body is irrelevant; the question is whether it has been made responsible for discharging a public function under the control of the state, and has been given special powers for that purpose.
Every limited company incorporated in the United Kingdom is constituted by and under UK law, and it has such legal capacities as are conferred on it by or under UK law, but that doesn’t make it an emanation of the state for EU law purposes. But British Gas plc was found to be an emanation of the state because of its statutory role in the public gas supply.
No. As you point out, the UK abolish the PC completely, but it doesn’t and can’t confer on it a jurisdiction to hear appeals from the Court of Appeal of Jamaica; if it could, Jamaica would not be a sovereign country.
The Privy Council may sit in London, but it is the law of Jamaica, not the law of England and Wales, which give it jurisdiction to hear appeals from the Court of Appeal of Jamaica and if that jurisdiction is ever to be withdrawn (as opposed to dissolving the PC) it will be the Parliament of Jamaica, not the Parliament of the UK, which wihtdraws it. I do not think that the EU courts would hold that the PC, in hearing an appeal from Jamaica, was acting as an organ or emanation of the UK.
Missed this earlier. Short answer: it’s complicated. 
The 1926 Balfour Declaration recognized that each of the six Dominions (Canada, Newfoundland, Australia, New Zealand, Ireland and South Africa) were autonomous and equal in status to the UK itself. But that was a declaration of an existing status; when did that change happen? As mentioned in that long-forgotten post by some Doper, resurrected by Spoons (excellent analysis if I do say so myself 
), it was an evolutionary process that probably culminated in WWI: the Dominions signed the Treaty of Versailles as associated states with the UK. If you’re signing an international treaty, you’re a nation.
As we know, the British government runs on convention. Once the Balfour Declaration was made, the Brits had recognized that the Dominions were equals, and Parliament passed the Statute of Westminster, also recognizing that status, then issues like passing legislation at the request of those Dominions followed, as did other stages such as the monarch appointing Governors-General on the advice of the Dominion governments, not the British government; the monarch issuing a commission of office to the Governor-General on the advice of the Dominion government, not the British government; the Dominion governments having the authority to end appeals to the Judicial Committee; and finally the British Parliament formally ceding all authority.
I don’t like the terms de facto and de jure in this context, because it doesn’t take into account the role of constitutional conventions. Regardless what the strict law may be (like the monarch having the power to refuse assent to a bill), conventions operate to put restrictions on those legal powers to implement modern democratic principles. Same for the evolution of Dominions: regardless of strict legal powers of the British Parliament, there were conventional restrictions on those powers with respect to the Dominions, required to implement the constitutional principle that the Dominions were in all respect the equals of the United Kingdom, not the subordinates.
It’s hard to get constitutional amendments through, yes, intentionally so, but it’s not Quebec that has blocked amendments. Quebec was the first province to propose a constitutional amendment under the new formula, by passing the Meech Lake resolutions. Meech didn’t pass because Manitoba and Newfoundland refused, not because Quebec wouldn’t use the amending formula.
And, Quebec has also used the bilateral amending formula, in concert with the federal government, to abolish religious separate schools in Quebec (s. 93A of the Constitution Act, 1867). So it’s not the case that Quebec is refusing to accept the amending formula that was passed against its will.
There’s uncertainty about the power of the federal Parliament in this respect, which is the reason for the court case.
The Statute of Westminster says that changes to the succession need to have the constant of the Commonwealth realms.
The Canadian Constitution says that a change to the “office of the Queen” requires unanimous consent from the federal government and the provinces.
Is a change to the succession a change to the “office of the Queen”, or does that phrase mean the powers of the office, not the law governing who is the monarch?
In favour of the argument that the federal government can consent to a change in the succession on behalf of Canada as a whole, there’s the abdication precedent: the federal Parliament passed an Act consenting to King Edward’s abdication. Nothing expressly in the Constitution gives the federal Parliament the power to legislate on the succession, but no-one at the time seems to have questioned the validity of that Act, presumably passed under the federal “Peace, Order and Good Government” power.
On the other hand, since the abdication crisis, the British Parliament passed the Canada Act, which says that no Act of the British Parliament will apply to Canada, and unanimous consent is needed to change the “office of the Queen”. Does that mean that the federal Parliament does not have the authority to consent to the British statute which amended the succession?
Fortunately, it’s not likely to be an issue for the foreseeable future, since the succession currently is: Charles => William => George, by which time most of the current Dopers will have gone to the next realm.
Princess Charlotte only gets a look-in if George dies without issue, and even then there’s no dispute, unless William has another son after Charlotte.
But we see in this thread that “independent country” is not necessarily a clear-cut term.
Since the British Indian Ocean territory is basically a giant military base and ruled directly from the UK with no local government or anything, it’s about as far from an “independent country” as it’s possible to get.
Yup. However fuzzy the borders of “independence” may be, a British Overseas Territory is not an independent country. They are under UK jurisdiction and sovereignty, and the UK is responsible for defence and foreign affairs.
They may or may not have some degree of internal self-government but the British Indian Ocean Territory, at any rate, does not. The entire population was forcibly expelled in 1965 and is still not permitted to return, and the territory has been turned into a military/air base largely staffed and operated by the US Army and Air Force. The civil government of the Territory comprise a Commissioner and an Administrator, both appointed by the British Government and both based in and operating from London.
The clearcutness of the British Indian Ocean Territory is indeed extreme. There is no local government because there are no locals! And since the military personnel only reside there a few years at a time at most, no one can “go local”. It doesn’t even make the UN’s list of Non-Self-Governing Territories which is a quite broad list of who isn’t independent. If you’re not independent and you don’t make that list, you’re really off the chart.
It’s darn near the legal equivalent of a floating sea installation or orbiting space station. The fact it’s made mostly of natural dirt rising naturally from the sea floor to a bit above the waves is what makes it weird.
Doubly weird in that it belongs absolutely to one country (UK) but is operated almost exclusively for the benefit of another (US). *Sui generis *indeed.
It could also come of if a future monarch ever decides to abdicate. That won’t happen with Elizabeth or Charles, but consenting to an abdication is basically the exact same thing as changing the succession (especially given that any future issue of former monarch would need to be excluded from the succession).