PUBLIC RECORD OFFICE
Reference—
TLC.O.885
16 PUBLIC RECORD OFFICE, LONDON ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
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the strength of Section 2 of that Act, under which "It shall be lawful for Her Majesty "the Queen in Council from time to time to establish all such laws and institutions, and
constitute such Courts and Officers, and make such provisions and regulations for the proceedings in the said Courts and for the administration of justice, as may appear to "Her Majesty in Council to be necessary for the pence, order, and good government That, if that "of Her Majesty's subjects and others within any British Settlement." 'section stood alone you considered that it might fairly be argued that the power to establish institutions "might be held to cover the setting up of an authority with a legislative power such as that conferred by Clause 108 of the Pacific Order in Council. That the Pacific Order in Council itself provided a general code for the government of those who fell under its operation within the Western Pacific, and that the power given uy the High Commissioner was in the nature of a subsidiary power to make Regulations in matters not provided for by the Order in Council and so forth.
That, on the other hand, Section 3, which, it would be observed, unlike Sections 2 and 6, was not recited in the preamble to the Pacific Order in Council, 1893, of the British Settlements Act expressly provided that :-"It shall be lawful for Her Majesty the Queen from time to time by any instrument passed under the Great Seal of the "United Kingdom or by any instructions under Her Majesty's Royal Sign Manual "referred to in such instrument as made or to be made, as respects any British Settlement, "to delegate to any three or more persons within the Settlement all or any of the powers conferred by this Act on Her Majesty in Council, either absolutely or subject to such conditions, provisions and limitations as may be specified in such instrument or instructions: provided that, notwithstanding any such delegation, the Queen in Council may exercise all or any of the powers under this Act provided always, that every such instrument or instruction as aforesaid shall be laid before both Houses of Parliament as soon as conveniently may be after the making and enactment thereof respectively."
That in view of the fact that by that Section an express power to delegate legislative authority was given and was required to be exercised in a particular manner and to be brought to the notice of Parliament, it appeared to you that there was some doubt as to whether reliance could safely be placed upon the power given in Section 2 of the Act as an authority for the power conferred on the High Commissioner by Clause 108 of the Pacific Order in Council, and that, therefore, if legislative authority in respect of British Settlements (using that term in the sense given by Section 6 of the Act) was to be conferred, it must be conferred upon three or more persons within the British Settlement in question, and the conferring instrument must be laid before Parliament in accordance with the terms of the Act. That it would be observed that in the Report of the Law Officers of the 16th May, 1904,* referred to above, it was held that the High Commissioner had power to issue King's Regulations for Ocean Island under Clause 108 of the Pacific Order in Council, but that on that occasion the question of the effect of Section 3 of the Act of 1887 in limiting the powers of the Crown was not brought to the notice of the Law Officers, the subject of the reference being the question whether Ocean Island was a Colony by settlement or otherwise, and whether the Act of 1887 was applicable to it. That the same remarks applied to the Reports of the 23rd November, 1905, and the 12th October, 1906,† in which it was held that Pitcairn Island also could be legislated for by King's Regulation.
That Sir H. W. Just was accordingly to request that we would take the papers into our consideration, and would advise you whether the application of legislative authority to the High Commissioner for the Western Pacific contained in Clause 108 of the Pacific Order in Council of 1893 was a valid exercise of the power conferred upon the Crown by Section 2 of the British Settlements Act of 1887.
We have taken the matter into our consideration, and, in obedience to your commands, have the honour to
Report-
THAT in our opinion the Pacific Order in Council of 1893, as far as it purports to authorize the High Commissioner for the Western Pacific to legislate for British Settle- ments, is not a valid exercise of the powers conferred by the British Settlements Act, 1887,
His Majesty in Council.
upon
If Section 2 of the Act hul stood alone, it might have been construed sufficiently widely to include an authority to delegate the legislative power conferred by it.
But
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such a construction is rendered impossible by the presence of Section 3 which gives an express power of delegation and lays down the limits within, and the conditions upon, which the power may be exercised.
We think it possible that the fact that Sections 2 and 6 of the Act are recited at length in the Order in Council, and that Section 3 of the Act is not mentioned, may have misled our predecessors in 1904.
We have, &c.,
The Right Honourable
Lewis Harcourt, M.P., &c., &c., &c.
KUFUS D. ISAACS JOHN SIMON.
* No. 224 in Vol. VI.
† Nos. 24 and 46 in Vol. VI.
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