Remember This? The Statute of Westminster

CityNews, in partnership with the Historical Society of Ottawa, brings you this weekly feature by Director James Powell, highlighting a moment in Ottawa's history.

One of the most important dates in Canada’s constitutional development from colony to independent country and for Ottawa as its capital is Dec. 11, 1931.

Yet, few Canadians know anything about what happened on that momentous day. This is perhaps not surprising. Even on that day more than ninety years ago, the event was scarcely noticed—no banner newspaper headlines, no fireworks, no celebrations. The Ottawa Journal didn’t even bother to cover the story. The Ottawa Citizen did, but the small article was sandwiched between an item about a University of Vermont student being located in Montreal after disappearing from Burlington, and a story about Christmas turkeys waiting for their owners at the police station. (If you were wondering, four Christmas turkeys had been found in the snow behind a billboard on Wellington Street. The police were keeping them chilled outside of a window until their owners collected them or they were donated to charity.)  This momentous but seemingly barely newsworthy event was the passage into law of the Statute of Westminster.

The Statute of Westminster was a short twelve clause Act of the British Parliament that gave effect to resolutions past at the 1926 and 1930 Imperial Conferences on constitutional changes affecting the overseas dominions of the British Empire—the Dominion of Canada, the Commonwealth of Australia, the Dominion of New Zealand, the Union of South Africa, the Irish Free State, and Newfoundland—with respect to their relationship with each other and with the Imperial government in London. The Statute repealed the Colonial Validity Act of 1865, under which the British government could void any act of a dominion government that if felt was “repugnant to the law of England.” As well, dominion governments were empowered to make treaties with foreign governments without the consent of the British Parliament.

After the Statute of Westminster came into force, no law passed by the government of the United Kingdom extended to any of the dominions except at the request and the consent of that dominion. In effect, while the dominions remained united by a common allegiance to the Crown, they became independent states.

Other parts of the Statute covered issues particular to various dominions. Section 7, the Canada clause, ensured that the Statute of Westminster did not repeal, amend or alter the British North America Acts, 1867 to 1930, or applied to any rules, orders, or regulations made thereunder. This clause was inserted at the request of the Canadian government after consultation with the provinces as no domestic agreement had been reached on how to change the British North America Act, which was itself another act of the British Parliament and served as Canada’s constitution. Owing to a lack of agreement on an amending formula, this issue remained unresolved until Pierre Trudeau controversially patriated the Act in 1982 over the wishes of the Québec government.

In the decades leading up to the 1926 Imperial conference, the future of the British Empire had been under wide discussion. The Imperial Federation League, founded in 1884, envisaged a closer union of the governments of the United Kingdom and the dominions which ultimately could take the form of an imperial federation, akin to the Canadian Confederation. Sir Charles Tupper, who was briefly Canada’s prime minister in 1896, was a supporter of the Imperial Federation League. The British Empire League, a successor organization to the Imperial Federation League, also sought greater imperial unity. Lord Strathcona, president of the Bank of Montreal and co-founder of the Canadian Pacific Railway, was one of the league’s founding members. The British Empire League lobbied hard for a preferential trading arrangement within the British Empire as a means of strengthening imperial ties.

However, many viewed a closer union of the disparate parts of the British Empire as a pipe dream owing to the geographic distances involved and divergent political and economic interests of the various territories. The idea of an Empire-wide preferential trading arrangement foundered on Britain’s long-standing policy of free trade as it implied Britain imposing tariffs on non-Empire imports which would lead to higher import costs, and risk retaliation from its non-Empire trading partners. Here in Canada, a tightening of imperial ties was also a non-starter among Francophones. As well, growing Canadian nationalism, nurtured by Canadian successes first in the South African War and later on the battlefields of France, was increasingly at odds with tighter ties to the United Kingdom.

At the 1926 Imperial Conference held in London, British prime minister Stanley Baldwin, and dominion leaders, which included William Lyon Mackenzie King, Canada’s prime minister, unambiguously recognized that the dominions were equal in status to the Mother Country. “The position and mutual relation of the group of self-governing communities composed of Great Britain and the Dominions may be readily defined. They are autonomous communities within the British Empire, equal in status and in no way subordinate to one to the other in any aspect of their domestic or external affairs though united by a common allegiance to the Crown, and freely associated as members of the British Commonwealth of Nations.” This was the first time the term “British Commonwealth of Nations” was used.  In foreign relations, it was underscored that the dominions would not be required to accept any obligation of the British government without the consent of their own governments.

The role of the governor general was also addressed. Hitherto, governors general in the dominions had a dual role. They represented the Crown and were also the conduit for relations between the dominions and the British government. But at the 1926 Imperial Conference, it was agreed that governors general would solely represent the Crown, while communications between dominion governments and the British government would be conducted on a government-to-government basis.

An unnamed Canadian delegate to the Conference, undoubtedly Mackenzie King himself, described the Conference’s resolutions to the press as “the Magna Carta of the Dominions.”

The public response to this outcome was broadly positive, though many were uncertain about what it meant or whether there was any practical change. The Ottawa Journal opined that the resolutions, “so far as we have been able to compare, involve practically no change.” The paper went on to say: “We are no freer today than we were this time last week or this time last year, for the simple reason that this time last year, we were completely unfettered and free.” As well, it felt that the resolutions did not weaken the British connection. As for Canada taking control of its external relations, the paper argued that “the plain truth is that since the war [Canada’s control of its] domestic and external affairs have been absolute, unfettered, complete.”

The Ottawa Citizen thought that the statute was a “document of historic importance” and a “big step forward in the evolution of Imperial relations.” However, it added, “Extremists here and there might talk of secession and absolute independence, but the real feeling of Empire as a whole is for maintaining the ties that bind but do not chafe,” for both practical and sentimental reasons. While there was a general desire for Imperial unity, there was also a “need of a greater detachment” for each of the dominions.

Opinions in the United States on the outcome of the Imperial Conference ranged from a view that it marked the end of the British Empire to the “beginning of a new epoch of power and influence” for the Empire, bolstered by the elimination of “frictions” and “embarrassments” that had handicapped the Empire in the past. The average view was that the British Empire would be little affected by the proposed constitutional changes, serenely moving ahead as it had in the past.

The 1930 Imperial Conference essentially reiterated the resolutions made four years earlier, underscoring the point that the appointment of the governor general of a dominion was a matter between the King and his dominion government, not the British government. As well, the ministers who provide advice to the Crown are the ministers in the dominion concerned.

Australia was quick off the mark. On the advice of James Scullin, the Australian prime minister, King George V appointed Sir Isaac Isaacs as the first Australian-born Governor General in December 1930. Canada continued to nominate titled Britons to the post of governor general until Canadian Vincent Massey’s appointment in 1952.

In the months that followed the conclusion of the 1930 Imperial Conference, the six dominions each undertook the necessary domestic steps to adhere to the Statute of Westminster. Here in Canada, Prime Minister Bennett met with his provincial counterparts to debate the issues and write the “Canada clause” in the draft Statute of Westminster. All six dominions formally agreed to the Statute by the 1 August 1931, the date set by the British government.

Once the dominions had signed off on the draft statute, debate began in London. The Rt. Hon. J.H. Thomas, secretary of state for dominion affairs, described the bill “as being one of the most important and far-reaching issues presented to the House for many generations, representing the culmination of many years’ constitutional development by the dominions.” Approval was far from universal. Winston Churchill, the great imperialist, was concerned that approval of the statute would allow the Irish Free State to break its link with the Crown. He was also concerned that should India be granted dominion status, something that was under discussion, it too could leave the Empire. Notwithstanding this opposition, the bill quickly passed the House of Commons and the Lords, receiving Royal Assent on Dec. 11, 1931.

Like in Canada, the passage of the Statute of Westminster was hardly noticed in the London press. One of the few papers who mentioned it that day, gave the statute equal billing to the passage of a Horticultural Products Bill. So much for the view that it was one of the most important pieces of legislation in generations!

Here in Ottawa, and indeed the rest of Canada, the lack of interest in the passage of the Statute may have been due to its anti-climatic nature. Having been the subject of two Imperial Conferences, as well as a Dominion-Provincial Conference, which had received newspaper headlines, it was hard to evince much enthusiasm for an act of the British Parliament that seem only to codify something that was already done in practice. However, in constitutional terms, the difference couldn’t have been more different than night and day. Canada, and the other dominions were now master in their own houses, or as the Ottawa Citizen put it “Now, in theory, Jack is as good as his master.”

The real-world implications of the Statute of Westminster became apparent eight years later at the start of World War II. Unlike in 1914, Britain’s declaration of war against Germany did not automatically mean Canada and the other dominions were also at war. Canada only declared war on Germany after a week of debate in Parliament. For that week, Canada was a neutral country despite Britain already being at war.

In 1959, Québec Member of Parliament (MP) Maurice Allard submitted a private member’s bill to recognize Dec.11 as Canada’s Independence Day. As is the case with most private member’s bills, Allard’s bill went nowhere. With Dominion Day, now called Canada Day, already a mid-summer holiday, a new holiday in cold December must have had little appeal.

If you were of the view that the Statute of Westminster is now ancient history, think again. In 2011, at a Commonwealth Heads of Government meeting in Sydney, Australia, the government of the United Kingdom and fifteen other countries (the Queen’s other realms) agreed to eliminate old, discriminatory laws under which the Royal Succession went to the eldest male son of the monarch unless the monarch had no son (male primogeniture) and which prohibited the monarch from marrying a Roman Catholic. A law to this effect was enacted in the UK in 2013. The question then was how to put this into effect in Canada—via the Canadian Parliament’s consent to the alteration of the succession rule implemented by the British Parliament, or via a constitutional amendment requiring provincial consent. Note that the preamble of the Statute of Westminster says any law touching on the Succession to the Throne of the Royal Style and Titles shall hereafter require the consent as well of the Parliaments of all the Dominions [now known as realms] as of the Parliament of the United Kingdom.

The government contended that through the issue of “symmetry,” Canada had the same monarch as the United Kingdom. So long as the British government consulted the Queen’s other realms, and received their consent, a constitutional amendment was not necessary. A bill to that effect was debated and passed in the House of Commons and the Senate, and received Royal Assent on March 27, 2013.

Legal challenges followed. In 2019, the Québec Court of Appeal confirmed a lower court ruling that the Succession to the Throne Act 2013 was consistent with Canada’s constitutional framework. In 2020, Canada’s Supreme Court dismissed an application for an appeal to this ruling.