CO885-(10-11) — Page 521

3608.

PUBLIC RECORD OFFICE

Reference :-

C.O. 885

PUBLIC RECORD OFFICE, LONDON

ÁLLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH—NOT TO

SIR,

No. 406.

(GENERAL.)

(NORTH AMERICA AND WEST INDIES.)

LAW OFFICERS to COLONIAL OFFICE.

Lincoln's Inn, April 11, 1866. We are honoured with your commands, signified in Sir Frederic Rogers' letter of the 3rd of April instant, stating that he was directed by you, Sir, to request our opinion respecting a change which you have under consideration in the present mode of leaving to their operation Acts passed by representative legislatures in the North American and West Indian Colonies.

Sir Frederic Rogers was also pleased to state that the ordinary legislation of the Crown Colonies is effected by Ordinances passed by a local council, which are subject to disallowance or confirmation by Her Majesty " through one of Her Majesty's Principal "Secretaries of State," that is, by despatch.

That in Colonies possessing representative legislatures the course is different, and in one respect not uniform.

That a law passed by a representative legislature, if disallowed, is in all cases alike disallowed, not by despatch, but by Order in Council; a law reserved for the significs- tion of Her Majesty's pleasure, or containing what is called a suspending clause, if assented to, is always assented to by Order in Council. But that the manner of con- firming a law which, being passed without a suspending clause, is therefore assented to by the Governor and thus comes into operation at once, subject only to the possibility of disallowance, varies in different classes of Colonies.

That in America and the West Indies such a law is sanctioned, or, in technical language, "left to its operation" by Order in Council, but in the Australian Colonies and in the Cape of Good Hope the Royal acquiescence is intimated by despatch, by which at present the Governor is informed, that Her Majesty will not be advised to exercise her " power of disallowance."

That in 1861 the Duke of Newcastle caused a proposal to be submitted to the Lord President of the Council to discontinue the employment of Orders in Council in the confirmation of Acts of North American and West Indian legislatures, which, having received the Governor's assent, were already in operation. That at the suggestion of the Lord President the question was referred to Sir R. Bethell and Sir W. Atherton, then Law Officers of the Crown, who gave their opinion* that the existing course should be retained.

Sir Frederic Rogers was pleased to annex copies of the correspondence between the Colonial Office and the Council Office, and of the opinion of the Law Officers, and to state that their opinion appears to have been affected by the consideration that there is often much responsibility in leaving a Colonial Act to its operation, which is no doubt true. But that that responsibility falls properly upon the Colonial Department, and no real increase of security is obtained for its faithful discharge by requiring that the form of allowance should involve a correspondence with the Council Office, on which no responsibility rests in the matter. That, on the other hand, the Crown no longer controls the ordinary legislation of the larger Colonies, and may very often not approve, without thinking it proper to arrest, a particular Act or course of legislation. That it is therefore becoming more and more questionable whether it is expedient to continue a form of acquiescence by which the Crown appears to assume any responsi- bility in respect to these laws. That the true position of the Home Government is best indicated not by an approving Order in Council (for this is the construction now placed on "leaving an Act to its operation") but by an official notification that the Act will not be disallowed.

That under these circumstances you, Sir, were desirous that the opinion of Sir R. Bethell and Sir W. Atherton. should be reconsidered; and you were led to request that reconsideration at the present moment because a contemplated redistribution of the business of the Colonial Department renders it desirable to adopt an uniform rule upon this subject: Sir Frederic Rogers was therefore to request that we would favour you with our opinion whether the course pursued as to the Australian Colonies of leaving Acts to their operation (or rather of signifying that the prerogative of disallowance will not be exercised) by despatch could be applied to the North American and West Indian Representative Colonies without risk or inconvenience.

• No. 70.

16270.-147. 35.-5/84.