20
85
TERMINOLOGY
The proviso was so peculiar that, although the whole definition was repealed in 1958, it is worth examination, having regard especially to its relevance to the question so whether Mandated and Trust Terri- tories were or are under Her Majesty's protection."
44
(2) The first sentence of the definition appears at first sight to . include territories.subsequently brought under His Majesty's protec- tion, in which case the rest of the definition must have been intended to prevent that happening unless an Order in Council were so to provide. So construed, it is a true proviso, but the drafting is remarkably lacking in clarity. If, on the other hand, the first part of the definition did not include territories subsequently brought under His Majesty's protection, then what follows is a fresh substantive provision enabling them to be included and not a proviso at all. If that is the correct interpretation, then territories subsequently becom ing parts of His Majesty's dominions (e.g., the Colony of Kenya in 1920) were likewise not included in the first part of the definition; nor, since they are not covered by the proviso, could they be brought in by Order in Council. This surprising result, and the reasonable assumption that what is in form a proviso is to be so construed, points to the conclusion that the former construction is correct.
(3) If Mandated Territories were not within the expression "under His Majesty's protection," then the first part of the definition is not concerned with them and the latter part is a substantive provi sion and not a proviso. If, as suggested above, the latter part of the definition, being in form a proviso, should be so construed, then it must qualify the earlier part of the definition; in so far as it relates to Mandated Territories, it can only qualify the reference to "territories under His Majesty's protection "; those words must therefore prima facie include Mandated Territories and the effect of the proviso is to remove them from the definition unless an Order in Council directs that they shall be included.
87
(4) The definition in section 27 (5) of the Cinematograph Films, Act, 1927, assumed that “British Empire" covered the whole of His Majesty's dominions. It provided only that the expression should include (i) territories under His Majesty's protection and (ii) Mandated Territories directed by Order in Council to be treated as if they were included in His Majesty's dominions for the purposes of the Act.
88
(5) Section 21 (1) of the Import Duties Act, 1932, defined the
a5 6 & 7 El. 2, c. 56, s. 16 (4) and Sched. 7.
8 See "Her Majesty's Protection," Infra, pp. 55-59.
87 17 & 18 G. 5, c. 29.
88 22 & 23 G. 5, c. 8.
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89 25 & 90 (11 8 Prote 91 Cmd.
92 See 1