The United Kingdom and the Commonwealth

Historically, the Commonwealth was an evolutionary outgrowth of the British Empire. British Commonwealth of Nations, a free association of sovereign states comprising the United Kingdom and a number of its former dependencies who have chosen to maintain ties of friendship and practical cooperation and who acknowledge the British monarch as symbolic head of their association.

From Empire to Commonwealth:-

In the sixteenth and seventeenth centuries, Britain embarked on empire building, although the original expansion of British interests overseas was essentially undertaken by private commercial companies. Where territory was taken over by conquest, it became the property of the Crown. Legal authority over such territories vested in the Crown and political control lay with the Privy Council.

The earliest revolution against colonization came with the American Declaration of Independence in 1776 in which Britain was deprived of 13 North American colonies. By the end of the nineteenth century, vast swathes of the world’s map were colored pink that is to say; under British power and control. The relationship between Britain and its colonies may be characterized as the movement from full British sovereignty over the territories through to increasing self-government and independence.

In 1865, the Colonial Laws Validity Act was passed by the British Parliament in order to clarify the relationship between British law and colonial law and the capacity of colonial legislatures for self-regulation. While the Act confirmed self-regulating legislative capacity, it also affirmed the principle that such devolved powers were subject to the overriding sovereignty of the imperial parliament.

In 1867, Canada became the first self-governing Dominion (a status implying equality with rather than subordination to Britain), to be followed by Australia in 1900, New Zealand in 1907, South Africa in 1910 and the Irish Free State in 1921. The recognition that the Empire was being transformed into a Commonwealth of Nations came in 1884.

The desire for formal recognition and explication of the constitutional relationship between Britain and the Dominions led to four-yearly Prime Ministerial conferences, which commenced in 1887. The Imperial Conference of 1926 adopted the Balfour Report which defined the Dominions as:

… autonomous communities within the British Empire, equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs, though united by common allegiance to the Crown, and freely associated as members of the British Commonwealth of Nations.

The Statute of Westminster 1931 gave formal recognition to this definition. Section 2 of the Act extended the powers of Dominion legislatures to amend or repeal Acts of the United Kingdom Parliament, although this power did not extend to going against the limits on the Dominion’s legislative capacity as laid down in the Acts containing that country’s constitution.

By the end of the Second World War in 1945, much of the remaining British power had been repossessed by its rightful owners, either through direct resistance to British rule (as in India) or by way of negotiated constitutional settlements between the British Crown and the formerly dependent territory.

From this time, what remained of the British Empire was transformed into a loosely defined, voluntary Commonwealth of nations, of which the British monarch represents the formal Head. While the Commonwealth was originally characterized by its members allegiance to the British Crown, the movement towards republicanism forced a change in direction for the Commonwealth.

It was Indian independence that represented the catalyst for change. India had remained a Dominion under the India Act of 1935, until independence in 1947. In 1949, India’s desire to become a republic and yet remain within the Commonwealth posed a novel question concerning allegiance to the British Crown.

The London Declaration of 1949 revised the position and enabled India to enter as the first republican member. Heads of government also agreed, however, that members would continue to recognize the Crown as the symbol of their free association and thus Head of the Commonwealth, the position which still pertains.

The Commonwealth Today:-

Unlike the European Union and Community, the Commonwealth is undefined by legal texts; it is not established or regulated by treaty; nor do formal legal procedures regulate its intergovernmental relations. Rather, the Commonwealth is characterized by bonds of common origin, history and legal traditions. The Commonwealth is made up of 54 countries, ranging from monarchies  either under Queen Elizabeth II or national monarchs  to republics.

Nowadays, 32 members are republics and five have national monarchies of their own, while 16 are constitutional monarchies which recognize Queen Elizabeth II as Head of State. The total population of the Commonwealth is 1.7 billion.

The shared history and traditions of Britain and other Commonwealth members, including legal traditions, provides the basis for this voluntary association of states, which spans six continents and five oceans, and which operates without a formal Charter or Constitution.

The Commonwealth was defined in 1971 at the Commonwealth Heads of Government Meeting (CHOGM) as:

… a voluntary association of independent sovereign States, each responsible for its own policies, consulting and cooperating in the common interests of their peoples and in the promotion of international understanding and world peace.

Further, at the 1971 CHOGM held in Singapore, Heads of Government issued the Declaration of Commonwealth Principles. The principles include:

  • The commitment to international peace in order to ensure the security and prosperity of mankind;
  • Commitments to the liberty of the individual, irrespective of race, color, creed or political belief and the individual’s democratic right to participate in democratic political processes;
  • A commitment to combating racial discrimination;
  • An opposition to all forms of colonial domination;
  • A commitment to removal of disparities in wealth between nations and to raising standards of living; and
  • A commitment to international co-operation.

These principles were reaffirmed and extended at the Harare CHOGM in 1991, which declared the Commonwealth’s commitment to promoting democracy, good government, human rights, the rule of law and gender equality within the context of sustainable economic and social development. Commonwealth members provide assistance to other countries in their transition to democracy by drafting legislation and reviewing electoral procedures.

The Commonwealth Secretariat:-

The Commonwealth is headed by a Secretary General. Under his stewardship, the Commonwealth Secretariat has been refashioned to enable it better to achieve Commonwealth objectives. The Secretariat was formed in 1965 and now has 12 separate divisions. The operational arm of the Secretariat is the Commonwealth Fund for Technical Co-operation, established in 1971, which, at the request of Commonwealth governments, provides technical assistance and expert advice on all issues within the Commonwealth’s agenda.

Appeals From Commonwealth Courts to the Privy Council:-

The Judicial Committee of the Privy Council has jurisdiction to hear appeals from dependencies of the Crown. Deriving from the royal prerogative, the jurisdiction was given statutory force under the Judicial Committee Acts of 1833 and 1844. Appeals may be with special leave of the Privy Council, or without leave. Appeals with special leave are predominantly criminal cases. Appeals against the death penalty represent the majority of appeals.

While before independence colonies had no power to abolish appeals to the Privy Council, on independence, this power arose. As a result, a majority of Commonwealth countries have abolished the right of appeal.