M
Ma Jakeman
Mr Paterson
NTD
Manuke to Miss Maxwell HKGD
DR
Reference
нка
19/2 HKS 340/1
(12)
ол
ег
BNA 1981 & COLONIAL CONSTITUTIONS
1.
'Enactment or instrument' in the sense in which these words are used in Section 51(1) of the British Nationality Act 1981 must mean any enactment of the Parliament of the United Kingdom (including any enactment comprised in Northern Ireland legislation as provided for Section 50(1) of the BNA 1981) and any instruments made under such enactments. 'Instrument' includes an Order in Council, (see Section 21(1) of the Interpretation Act 1981).
2. I have looked at the Turks & Caicos Constitution 1969 referred to by you in your minute of 12 February. This was made by Order in Council under powers conferred by Section 5 of the West Indies Act 1962 and Section 1 of the Bahamas Islands (Constitution) Act 1963. Paragraph 2(1) of the Order states that Schedule 1 to the Order is to have effect as the Constitution of the Turks & Caicos Islands. The Order provided for an Administrator and set up a Legislative Assembly.
3. On the one hand, the Constitution is part of the Order in Council making it. Being part of an Order, Section 51(1) and (3) of the British Nationality Act 1981 operates on it so as Convert references to categories of nationals under the British Nationality Act 1948 into references to categories of nationals under the new Act. On the other hand, the Constitution of the Turks & Caicos Islands 1969 has become part of the law of the Turks & Caicos Islands and I have considered whether this means that Section 51(1) and (3) of the 1981 Act can still be used in this context eg when considering voting rights of British subjects in the Turks & Caicos. However, I think the answer is 'yes'. The British Nationality Act 1981 has itself extra-territorial effect eg in the Turks & Caicos Islands. I think therefore that Section 51 of that Act can operate in the Turks & Caicos Islands so as to turn references to categories of nationals under the 1948 legislation in the Constitution of 1969, forming part of the Turks & Caicos Islands (Constitution) Order 1965, into references to categories of nationals under the 1981 Act.
If this is so, no amending Orders in Council need be made.
However, I do not know whether all constititions of dependent territories were made by Orders in Council. If not, the answer may be different. This can only be considered case by case. Perhaps the Department could do a trawl.
4.
CODE 18-77
17 February 1982
Shelagh Brooks вобщ
S Brooks
Legal Advisers