TNAG-1117-FCO40-1391-Future-of-the-Dependent-Territories-1982 — Page 153

Background

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TERMINOLOGY

British Colony. However that may be, there seems to be little room for doubt that these islands are technically part of the British Empire. In the Anglo-Egyptian Sudan there was no separation of powers but, adopting the analogy of joint tenancy, it seems that there was justi- fication for including it in an undefined British Empire while the Condominium existed.

Members of the Commonwealth

When a Member of the Commonwealth becomes a republic, retaining its Membership and acknowledging the Queen only as Head of the Commonwealth, this formal, though nonetheless fundamental, constitutional change, by virtue of which Her Majesty ceases to be head of the executive, seems clearly to take the country out of an undefined British Empire. The termination of Her Majesty's authority in relation to Malaysia and Uganda (which are not repub- lics) presumably had the like effect. Members of the Commonwealth of which Her Majesty is Queen must remain, if only because it is not possible to point to any date on which they ceased to be part of the British Empire.

Present use of the term

44

'British Empire" no longer appears in enactments and official documents, having been replaced by “the Commonwealth." It is no doubt regarded as inconsistent with the equality of Members of the Commonwealth and, with reference to dependent territories, as savouring too much of “colonialism.”

COMMONWEALTH AND EMPIRE

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This expression is of recent origin and from the point of view of the lawyer its use can only cause confusion. No doubt, the intended implication is that Commonwealth means the Members of the Commonwealth and "Empire" the dependent territories; but since in law "the Commonwealth," q.v., by itself includes both the Mem- bers and the dependent territories and they are all, with certain apparent exceptions, included in "The British Empire," q.v., this expression is patently tautologous. If called upon to interpret it, particularly in a context where either "Commonwealth or British Empire" simpliciter also occurred, the Courts would be faced with a problem of considerable obscurity, and the expression is one which the lawyer would be well advised to avoid. It does not appear ever to have been used for official purposes, except in the Commonwealth Telegraphs Agreement of 1948.98

93 Cmd. 7582, preamble and Arts. 3 (1), 9 and 10 (1).

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