British possession

A British possession is a country or territory other than the United Kingdom which has the

Overview

In common statutory usage the British possessions include

Although the term enjoyed some use in statutes prior to 1889, the formal definition of British Possession came in the Interpretation Act 1889, which was superseded by the current Interpretation Act 1978.^{[1][2][14][15][16]}

Definition

1889 and 1978 definition

Two acts in the Parliament of the United Kingdom define the current status of British possessions: the Interpretation Act 1978^{[16][17][18][14][1]} and the Interpretation Act 1889.^[14][16] In the reign of Queen Victoria (r. 1837–1901), the Interpretation Act 1889 defined the British possessions in its article 18, section 2:^{[15][16]: 37–38}

"British possession" means any part of Her Majesty's dominions outside the United Kingdom; and where parts of such dominions are under both a central and a local legislature, all parts under the central legislature are deemed, for the purposes of this definition, to be one British possession.

— Interpretation Act 1889, 18.2^[19]

According to the 1890 1st edition of

The expression "British possession" means any part of Her Majesty's dominions, exclusive of the United Kingdom, the Channel Islands, and Isle of Man; all territories and places within Her Majesty's dominions which are under one legislature shall be deemed to be one British possession and one part of Her Majesty's dominions

— Fugitive Offenders Act 1881, 39

Commonwealth of Australia is not a British possession for this purpose, because the federal legislature has no power over the subject matter of that Act, so that Victoria must be reckoned still such a possession".^[21]

^{: 4, note i}

Post Office (Parcels) Act 1882

The Post Office (Parcels) Act 1882 defined the British possessions in its section 17^{[15]: 38 and note 79}

The expression "British possession" does not include the Channel Islands or the Isle of Man, but includes all other territories and places forming part of Her Majesty's dominions

— Post Office (Parcels) Act 1882, 17^[37]: 451

The definition of "British possession" in the Post Office (Parcels) Act 1882 excludes the Channel Islands and the Isles of Man, but does not exclude the United Kingdom itself.^{[15]: 38 and note 79} According to Roberts-Wray, this was an "presumably by accident".^{[15]: 38 and note 79}

Patents, Designs, and Trade Marks Act 1883

The

Patents, Designs, and Trade Marks Act 1883 defined the British possessions in its section 117:^[15]

^{: 38, note 81}

"British possession" means any territory or place situate within Her Majesty's dominions, and not being or forming part of the United Kingdom, or of the Channel Islands, or of the Isle of Man, and all territories and places under one legislature, as hereinafter defined, are deemed be one British possession for the purposes of this Act

— Patents, Designs, and Trade Marks Act 1883, 117[38]

The definition of "British possession" in the Patents, Designs, and Trade Marks Act 1883 excluded the Channel Islands and the Isle of Man.^{[15]: 38, note 78}

Colonial Prisoners Removal Act 1884

The Colonial Prisoners Removal Act 1884 defined the British possessions in its section 18:^{[15]: 38, note 78 [16]}

The expression "British possession" does not include any place within the United Kingdom, the Isle of Man, or the Channel Islands, but includes all other territories and places being part of Her Majesty's dominions, and all territories and places within Her Majesty's dominions which are not part of India and are under one legislature shall be deemed to be one British possession, and any part of India under a Governor or Lieutenant Governor shall be deemed to be one British possession.

— Colonial Prisoners Removal Act 1884, 18^[39]

The definition of "British possession" in the Colonial Prisoners Removal Act 1884 excluded the Channel Islands and the Isle of Man.^{[15]: 38, note 78 [16]}

British Settlements Act 1887

The British Settlements Act 1887 – which distinguished a particular category of British possession which had been "acquired by settlement" distinct from those "acquired by cession or conquest" – defined the British possessions in its article 6:^{[17][40]: 15}

For the purposes of this Act, the expression "British possession" means any part of Her Majesty's possessions out of the United Kingdom, and the expression "British settlement" means any British possession which has not been acquired by cession or conquest, and is not for the time being within the jurisdiction of the Legislature, constituted otherwise than by virtue of this Act or of any Act repealed by this Act, of any British possession.

— British Settlements Act 1887, 6^[41]

As British possessions acquired without cession or conquest, Ascension Island, the British Antarctic Territory, the Falkland Islands, the Pitcairn Islands, South Georgia and the South Sandwich Islands, and Tristan da Cunha all take their statutory basis as British possessions and British settlements from the British Settlements Act 1887.^[42]: 15

Later definitions

Colonial Probates Act 1892

The Colonial Probates Act 1892 defined the British possessions in its section 4:^{[15]: 38, note 83 [16]}

Where it appears to Her Majesty in Council that the legislature of part of a British possession has power to make the provision requisite for bringing this Act into operation in that part, it shall be lawful for Her Majesty to direct by Order in Council that this Act shall apply to that part as if it were a separate British possession, and thereupon, while the Order is in force, this Act shall apply accordingly.

— Colonial Probates Act 1892, 4.3^[43]

According to the 2009 13th volume of the 5th edition of Halsbury's Laws of England, the Colonial Probates Act 1892 is one of the acts in which "the term may include both the parts under the central legislature and those under the local legislatures", which differs from the definition in the Interpretation Act 1978.^[16]

General Clauses Act 1897

In the law of India and the law of Pakistan, "British possession" is defined by the General Clauses Act 1897.^[44][45][46]

Medical Act (1886) Amendment Act 1905

The Medical Act (1886) Amendment Act 1905 defined the British possessions in its section 1:^{[15]: 38, note 83}

For the purposes of the Medical Act, 1886, where any part of a British possession is under a central and also under a local legislature, His Majesty may, if he thinks fit, by Order in Council, declare that the part which is under the local legislature shall be deemed a separate British possession.

— Medical Act (1886) Amendment Act 1905, 1^[47]

Evidence (Colonial Statutes) Act 1907

In the reign of Edward VII (r. 1901–1910), the Evidence (Colonial Statutes) Act 1907 defined the British possessions in its article 1.3:^[17]

The expression "British possession" means any part of His Majesty's dominions exclusive of the United Kingdom, and, where parts of those dominions are under both a central and a local Legislature, shall include both all parts under the central Legislature and each part under a local Legislature.

— Evidence (Colonial Statutes) Act 1907, 1.3^[48]

As a result of the Evidence (Colonial Statutes) Act 1907, and unlike other overseas laws, statutes,

Australian States" – otherwise, the definition "may not fit in with the division of legislative powers".^[15]: 38 According to the 2009 13th volume of the 5th edition of Halsbury's Laws of England, the Evidence (Colonial Statutes) Act 1907 is one of the acts in which "the term may include both the parts under the central legislature and those under the local legislatures", which differs from the definition in the Interpretation Act 1978.^[16]

The Evidence (Colonial Statutes) Act 1907 applied to

Sovereign Base Areas of Akrotiri and Dhekelia which were retained when Cyprus became independent)."^[51]

Solicitors Act 1932

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Protectorates

The effect of the decision in R v Earl of Crewe, ex parte Sekgome (1910)[53] was that British protectorates were not British possessions, they were foreign countries to which the Foreign Jurisdiction Act 1890 applied.^[54]

Application

Admiralty law

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See also: Red Ensign Group

In British

red ensign (without any defacement or modification)" but "in the case of British ships registered in a relevant British possession, any colours consisting of the red ensign defaced or modified whose adoption for ships registered in that possession is authorised".^[9] As defined by a statutory instrument of 2008, the "relevant British possessions" are:^[8][10]

red ensign (without any defacement or modification)".^[9] British ships from "relevant British possessions" are entitled to fly modified or "defaced

" versions of this flag.

•  Anguilla
•  Bermuda
•  British Virgin Islands
•  Cayman Islands
•  Falkland Islands
•  Gibraltar
•  Guernsey
•  Isle of Man
•  Jersey
•  Montserrat
•  Saint Helena
•  Turks and Caicos Islands

Copyright law

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According to D. P. O'Connell, writing on the terms "British possession" and "Her Majesty's dominions" in

The American Journal of International Law in 1964, "Where necessary, courts have construed these expressions to include territories which have gained republican status, but which have retained British legislation".^[55]

According to T. G. Agitha and N. S. Gopalakrishnan writing in 2013, in a copyright case in the

Copyright Act, 1957, the defendant accused of violating copyright claimed that the Copyright Act 1911 (as modified by the Indian Copyright Act 1914) "being a law for the publishers of the UK, ceased to be operative in India when India became independent in 1947 and particularly after the country attained Republican status in January 1950, with the result that there was, at the relevant period, no copyright in India in published works".^{[56]: 117–118} The defence had maintained "that under the terms of section 25 of the 1911 Act itself its provisions were inapplicable to self-governing dominions and when India attained the status of a self-governing dominion by reason of the Indian Independence Act 1947, the 1911 Act ceased to apply in India"^[56]: 118 According to O'Connell, the defence argued that "since India had ceased to be a "British possession" and copyright protection is reciprocally predicated upon original publication in a "British possession," the Act could not apply. The court rejected the defense".^[55]: 44 According to Agitha and Gopalakrishnan, the Madras High Court's judgement rejecting the defendant's arguments was "in line with the accepted view in international law that the emergence of a new state or a change of sovereignty within a state does not bring about any change in the private rights of its citizens or the law governing such rights".^[56]

^: 119

Extradition law

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In the

Dominion of Canada might have ceased to be a "British possession", writing that 'since, under the Statute of Westminster, Dominions are no longer colonies "notwithstanding anything in the Interpretation Act, 1889", it is submitted that they are no longer "British possession"', but admitting that 'the point is arguable'.^[57]

The Fugitive Offenders Act 1881 ceased to apply to the

Union of Burma and the Republic of Ireland when those countries withdrew from the Commonwealth.^[11]: 487 Under the Ireland Act 1949, British laws which previously extended to the Irish Free State as part of "His Majesty's dominions" continued to apply to the Republic of Ireland, but the same was not true of those which applied to British possessions, even though under the Interpretation Act the British possessions are defined as being "any part of Her Majesty's dominions outside the United Kingdom".^{[15]: 38–40} According to Roberts-Wray, "If that had been the intention it would have been made clear; the saving provision in the Ireland Act operates, it is submitted, only on direct references to Her Majesty's dominions and not, via the Interpretation Act, on references to British possession".^[15]

^: 38–40

In the

The International and Comparative Law Quarterly in 1960: "From the point of view, however, of United Kingdom courts the Act still applies in relation to India. This is because of the India (Consequential Provisions) Act, 1949, which provided for the continued application of existing law in relation to India, notwithstanding its new status as a Republic."^[11]

^: 487

Writing in The American Journal of International Law in 1964, D. P. O'Connell noted that, under the Fugitive Offenders Act 1881, "rendition has been successfully claimed by or from India, Pakistan, Ghana, Cyprus, Nigeria and the United Kingdom, and by Australia in Ceylon, without the defense being successful that, in virtue of independence, the Act could no longer apply".^[55]: 44 According to O'Connell: "However, it must be noticed that, at the time of rendition, Pakistan, Nigeria and Ceylon were still monarchies, and the United Kingdom statutorily maintained the Fugitive Offenders Act in relation to India and Cyprus".^[55]: 44

New Zealand ceased to be a British possession after adoption of the

New Zealand Constitution Amendment Act 1973, which modified the provisions of the Statute of Westminster Adoption Act 1947.^[60][61] For example, in 1976 the unreported case of Re Ashman and Best held that the country was not a "British possession" for extradition purposes, notwithstanding the application of the UK Fugitive Offenders Act 1881 to British possessions.^[61][62] The New Zealand Parliament later passed the Constitution Act 1986, which ended the power of the Parliament of the United Kingdom to legislate for New Zealand.^[60][61]

Criminal law

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The question of British possession status arose in the

British subjects liable to prosecution under British law. The Privy Council denied the appeal, having found Pitcairn to be a British possession under the British Settlements Act 1887, which had been extended to the Pacific by an order in council in 1893 and to Pitcairn in particular in 1898 by the Secretary of State for the Colonies, Joseph Chamberlain.^{[63]: 436, 438, 441–442, 447 [64]}

Delivering the judgment, Lord Hoffman spoke of the "legal status of the Pitcairns as a British possession". Lord Wolff said " In my view the evidence that Pitcairn is and was at all relevant times a British possession was overwhelming and so I agree with Lord Hoffmann, that for the purposes of determining these appeals, it is not necessary to explore the limits of the act of state doctrine".[65]

According to Gordon Woodman, "In the case of Pitcairn the starting-point for argument was the proposition that the territory was a British possession".^[66] In 1790 Pitcairn was terra nullius, and according to Andrew Lewis "Once a British possession, it would require a deliberate act of abandonment or cession to another to change its status".^[67] According to Dino Kritsiotis and A. W. B. Simpson, "the finer legal points as to the actual timing or moment of territorial acquisition were not regarded as essential to, or determinative of, the prosecution's case".^[68]

Nationality law

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From 1867,

Anglo-Chinese" and entitled to a degree of British protection by agreement with the Qing dynasty.^[69]

^{: 282, note 10}

In the first three decades of the 20th century,

33 & 34 Vict. c. 14) and by a report circulated at the 1902 Colonial Conference, which sought to establish a common standard of naturalization to be recognized throughout the empire for both internal and external purposes. The interdepartmental report allowed "a Secretary of State, or the Governor of a British possession, to confer the status of a British subject upon persons who fulfil the requisite conditions in any part of the British Dominions".^[70]

Notes

1. ^ In the 21st century, the term appears in the Sanctions and Anti-Money Laundering Act 2018,^[24] the Wreck Removal Convention Act 2011,^[25] and the Merchant Shipping (Pollution) Act 2006.^[26]

References

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10. ^ ^{a b c} "Statutory Instrument 2008 No. 1243: The Merchant Shipping (Categorisation of Registries of Relevant British Possessions) (Amendment) Order 2008". legislation.gov.uk. 2008-05-07.
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18. ^ "Interpretation Act 1978". legislation.gov.uk.
19. ^ "Interpretation Act 1889". legislation.gov.uk.
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24. ^ "Sanctions and Anti-Money Laundering Act 2018". legislation.gov.uk.
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29. ^ ^{a b} "Colonial Laws Validity Act 1865". legislation.gov.uk.
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37. George E. B. Eyre and William Spottiswoode
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38. ^ Munro, Joseph Edwin Crawford (1884). The Patents, Designs, and Trade Marks Act, 1883 (46 & 47 Vict. C. 57) with the Rules and Instructions: Together with Pleadings, Orders, and Precedents. London: Stevens and Sons. p. 144.{{cite book}}: CS1 maint: date and year (link)
39. ^ "Colonial Prisoners Removal Act 1884". legislation.gov.uk.
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41. ^ "British Settlements Act 1887". legislation.gov.uk.
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43. ^ "Colonial Probates Act 1892". legislation.gov.uk.
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46. ^ "The General Clauses Act, 1897". Pakistan Code. Retrieved 2023-10-23.
47. Eyre and Spottiswoode
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52. ^ Statutory Instrument 1909 No. 1230 Evidence (Colonial Statutes) Act 1907 extension to Cyprus and certain British Protectorates Order in Council 1909 Statutory Instrument 1922 No. 1418 Order in Council extending the Evidence (Colonial Statutes) Act 1907 to certain British Protectorates
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62. ^ "Joseph, PA --- "Foundations of the Constitution" [1989] CanterLawRw 5; (1989) 4(1) Canterbury Law Review 58". www.commonlii.org. Retrieved 2024-03-22.
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