Royal instructions

Royal instructions[1] are formal instructions issued to governors of the United Kingdom's colonial dependencies, and past instructions can be of continuing constitutional significance in a former colonial dependency or Dominion.

Content

Traditionally the royal instructions were issued to a governor to:

  • tell him how the Executive Council and legislative council were to be constituted, how their procedure was to be regulated, and how he was to work with them
  • set out the how legislation was to be framed
  • instruct him as to which classes of legislation he must refuse his assent
  • regulate precedence
  • set out how copies of certain formal documents and records were to be communicated to the British government

Royal instructions were a commonly used legal instrument of British imperial law used in the governing of the empire's colonies. Royal instructions delegated to colonial governors the legal capacity to exercise the Crown's royal prerogative and set out the limits and conditions within which that prerogative was to be exercised.[2]

The royal instructions given to a colonial governor were one of three documents normally used for constituting the government of a colony,[3] the others being the letters patent or order in council constituting the office of governor and commander-in-chief, and the governor's commission obliging him to follow the instructions he received from the Privy Council in London.[4] As explained in the book, Royal Government in America, it is "The British authorities clearly looked upon the instructions as constitutional documents of the greatest importance which all members of the colonial government were expected to obey."[5] For example, when, in the late 1750s, the Governor of Virginia approved three Acts in contravention of regulations incorporated into his royal instructions, the Privy Council struck down the Acts and admonished the Governor, reminding him that his instructions in this regard were "coeval with the Constitution of the British Colonies" and formed "an Essential part of that Constitution and cannot be sett aside a without subverting Fundimental Principle of it."[6]

As at 1945 there were eight legislative councils which had been constituted by royal instructions: the Falkland Islands, the Gambia, Hong Kong, Kenya, Nyasaland, Seychelles, the Straits Settlements and Uganda; while others had been constituted by order in council, letters patent, local ordinance or by act of the imperial parliament at Westminster.[7]

Continuing importance in Canada

With Confederation, Canada inherited a Constitution "similar in Principle to that of the United Kingdom".[8] Thus, those elements of the constitution of the Provinces of Canada that were not displaced by the Constitution Act, 1867 or subsequent legislation continue in force in the country.[9] At the time of Confederation and still to this day, certain subjects matters remain within the scope of the Crown's prerogative powers, such as international treaty making and the creation of Indian reserves.[10] However, the limits on those powers and the guidelines for their use that were set out in the instructions to the governors of Canada's constituent colonies were incorporated into Canada's constitution and, unless displaced, bind the Crown in Right of Canada's actions.

The continued importance of Royal Instructions can has been noted by the Supreme Court of Canada. The Supreme Court of Canada's decision in St. Catherines Milling, in which it was stated that the Royal Proclamation of 1763 must be read "together with the Royal instructions given to the Governors as to its strict enforcement" and that, when taken together, these constitute "the Indian Bill of Rights".[11][12] Numerous contemporary decisions of the Supreme Court of Canada refer to Royal Instructions given to colonial governors, without necessarily analysing their legal status.[13][14][15][16]

Canada after Confederation

Initially the form of royal instructions remained essentially unchanged after the development of responsible government. Detailed criticism in 1876 by Edward Blake (Canada's federal Minister of Justice) of the wording of both the letters patent appointing the Governor General of Canada and the royal instructions issued to him led to changes to both sets of instruments for each of the dominions, to better reflect how they were actually governed.

See also

References
  1. Note that this term is always used in the plural.
  2. "The Attorney General (Canada) v. The Attorney General of the Province of Ontario, 23 SCR 458 (at pg. 469)". Ottawa: Queen's Printer for Canada. 13 March 1894. Retrieved 13 June 2013. {{cite journal}}: Cite journal requires |journal= (help)
  3. Wright, Martin. p.142 "The Development of the Legislative Council 1606-1945", in the series "Studies in Colonial Legislatures" edited by Margery Perham of the Institute of Colonial Studies, Oxford, England (Faber & Faber, 1946)
  4. Shortt, Adam; Doughty, Arthur G. (1918). "Commission to the Captain General and Governor in Chief of the Province of Quebec, 4 November 1763". Documents Relating to the Constitutional History of Canada, 1759–1791 (2 ed.). Ottawa: Historical Documents Publication Board. pp. 171–172. OL 14005119M.
  5. Woods Labaree, Leonard (1964). Royal Government in America: A study of the British Colonial System before 1783. New York: Fredrick Ungar. p. 32.
  6. Acts of the Privy Council of England, Colonial Series, 1745–1766. W L Grant, James Munro, Almeric W Fitzroy. Hereford: Her Majesty's Stationery Office. 1908. p. 449.{{cite book}}: CS1 maint: others (link)
  7. Wright, Martin. "The Development of the Legislative Council 1606-1945", in the series "Studies in Colonial Legislatures" edited by Margery Perham of the Institute of Colonial Studies, Oxford, England (Faber & Faber, 1946)
  8. Victoria (29 March 1867), Constitution Act, 1867, Westminster: Queen's Printer
  9. Hogg, Peter W. (2007). Constitutional Law of Canada (5th ed.). Toronto, Ontario: Carswell. pp. 1–20. ISBN 978-0-7798-1337-7.
  10. Ross River Dena Council Band v. Canada, [2002] SCC 54, Ottawa: Queen's Printer of Canada, 20 June 2002, paragraph 62, retrieved 8 July 2013
  11. St. Catharines Milling and Lumber Co. v. R., 13 SCR 577 (at pg. 652), Ottawa: Queen's Printer for Canada, 20 June 1887, retrieved 20 July 2013
  12. St. Catherines Milling and Lumber Company v The Queen [1888] UKPC 70, [1888] 14 AC 46 (12 December 1888)
  13. Reference Re: Offshore Mineral Rights, [1967] SCR 792, Ottawa: Queen's Printer for Canada, 7 November 1967, retrieved 10 June 2013
  14. Reference re: Ownership of the Bed of the Strait of Georgia and Related Areas, [1984] 1 SCR 388, Ottawa: Queen's Printer of Canada, 17 May 1984, retrieved 28 July 2013
  15. Simon v. The Queen, [1985] 2 S.C.R. 387, Ottawa: Queen's Printer of Canada, 21 November 1985, retrieved 8 August 2013
  16. R. v. Marshall; R. v. Bernard, 2005 SCC 43, [2005] 2 SCR 220, Ottawa: Queen's Printer of Canada, 20 July 2005, retrieved 8 August 2013
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