The Letters Patent dated 21 July 1908 sought to define more closely what territories constituted the Dependencies of the Falkland Islands and provide for their Governance.

The Letters Patent dated 23 June 1843 had provided for the Governance of the ‘Falkland Islands and their Dependencies’ without defining the extent of the Dependencies expressly. That said legislation that expressly applied in the Dependencies had been passed in the Falkland Islands previously along with Ordinances that were understood to have applied. This belief would have in part have been grounded in part by the stipulation in the Administration of Justice Ordinance 1851 and repeated in similar terms in the Administration of Justice Ordinance 1853 s62:

“That in this or any Ordinance, unless there is anything in the subject or context repugnant to such construction… the words Falkland Islands shall be understood to mean: ‘the Falkland Islands and the Dependencies thereof’…

The Letters Patent dated 21 July 1908 expressly provided for the Governance of the Dependencies going forward and confirmed the lawfulness of things done previously:

Eg: Section 5:

“It shall be, and shall be deemed always to have been competent for the Governor, by and with the advice and consent of the Legislative Council of Our Colony of the Falkland Islands, to make laws for the peace, order, and good government of the Dependencies.”

Similarly section 6 confirmed the grants of land already made in similar terms.

The Dependencies Ordinance 1908 established for the first time specific rules governing how laws made in the Falkland Islands were to be applied in the Dependencies.

The Dependencies Ordinance 1908 s3 provided:

“It shall be lawful for the Governor in Council from time to time to declare by notification in the Gazette any Ordinance or part of any Ordinance of the Colony, whether passed before or after the commencement of this Ordinance, to be in force in the Dependencies, and thereupon such Ordinance or part as aforesaid, and any rules, regulations, or bye-laws made thereunder, unless it is expressly declared that such rules, regulations, or bye-laws shall not be in force in the Dependencies, shall be in force therein, and it shall be lawful for the Governor in Council by notification in the Gazette to revoke and declare to be no longer in force any such notification as aforesaid.”

Section 4 stated:

“Except as provided in this Ordinance, no Ordinance of the Colony passed before the commencement of this Ordinance, nor any Ordinance of the Colony passed hereafter which shall not be expressly declared to be in force in the Dependencies as well as in the Colony, shall be in force in the Dependencies.”

Section 3 appeared to have established a simple mechanism whereby the Governor could, by a notice in the Falkland Islands Gazette, simply declare which Falkland Islands laws applied in the Dependencies. Given this and the apparent effect of section 4 one could have envisaged that soon after this Ordinance coming into effect that a notice would have been published in the Gazette listing all relevant Falkland Islands laws applying in the Dependencies. However this does not appear to have been done systematically.

The Dependencies Ordinance 1908 table shows the use of the section 3 notice power only 23 times between 1908 and 1950. The power was exercised 19 times between 1908 and 1915. Perhaps the most important early exercise of the power was the adoption of the 1915 Revised Edition of Ordinances of the Colony of the Falkland Islands. These 23 notices can be downloaded individually at the bottom of this page.

After the exercise of the power twice in December 1915 it was only used four more times. On 24 May 1924, 27 July 1945, 28 June 1947 and finally on 9 January 1950.

The use of the power on 27 July 1945, and to a lesser extent on 28 June 1947 gave rise to doubts and controversy – partly because those notices (and especially the notice of 27 July 1945) sought to apply Falkland Islands Ordinances in the Dependencies retrospectively.

Why the section 3 power was not used more extensively or systematically has been lost to time. Maybe this was because the Governors considered that the word ‘Colony’ in the Dependencies Ordinance 1908 was to be interpreted in the light of the definition of ‘Colony’ in the Interpretation and General Clauses Ordinance 1900. In that Ordinance the term ‘Colony’ was to be taken to include the Dependencies. However before one could apply that definition one would have to consider the opening wording of s28 Interpretation and General Clauses Ordinance 1900:

“In the construction of Ordinances, whether passed before or after the commencement of this Ordinance, the following rules shall be observed, unless otherwise expressly provided for, or unless such construction would he inconsistent with the intention of the Ordinance or repugnant to the context…“

It is very arguable that the term ‘Colony’ in the Dependencies Ordinance 1908 was intended to be read as referring simply to the Falkland Islands.

There may have been an initial assumption that all existing laws did apply in the Dependencies – however the wording of s4 should perhaps have discouraged such an approach. In the 30 year gap between 1915 and 1945 when the s3 power was only exercised once (24 May 1924) some Falkland Islands Ordinances (eg Wireless Telegraphy Ordinance 1925) declared within the Ordinance that it applied to the Dependencies. But this was not done habitually or systematically.

It is not clear whether that approach was taken in the belief that such an assertion in the Ordinance amounted to an express declaration of the law being in force in the Dependencies (on the basis that s4 provided for another mechanism to apply Falkland Islands laws to the Dependencies) or whether it was thought that another Ordinance could simply assert it applied in the Dependencies notwithstanding the provisions of the Dependencies Ordinance 1908.

It is likely that there was some realisation in the mid 1940s (possibly associated with the work that had commenced to codify the laws of the Falkland Islands) that there were few laws enacted after the 1915 Codification that could be shown readily to apply to the Dependencies.

This may well have let to the final three exercises of the s3 power – on 27 July 1945, on 28 June 1947 and finally on 9 January 1950.

The preamble to the notice in the Gazette of 27 July 1945 which sought to declare the application of some 36 Falkland Islands Ordinances and their secondary legislation to the Dependencies gave an interesting explanation:

“Whereas, by virtue of the definition of the words “The Colony” contained in section 28 (a) of the Interpretation and General Law Ordinance, 1900, certain Ordinances of the Colony not expressly so applied have, from the dates of their enactment, been held to apply also to the Dependencies, and Whereas certain doubts have arisen as to which of the said Ordinances were, in fact, intended to apply to the Dependencies, Now, therefore, His Excellency-in-Council, under the powers conferred upon him by section 3 of the Dependencies Ordinance, 1908, is pleased to declare by this Notification that the Ordinances set out in the Schedule hereto, together with any Rules, Amending Ordinances and Regulations, Bye-laws or Orders made thereunder…”

In addition to the issue relating to the definition of ‘Colony’ there may have been a belief that s4 Dependencies Ordinance 1908 provided a separate mechanism to apply Falkland Islands legislation in the Dependencies by way of express declaration in the Ordinance itself. The doubt perhaps arose because s4 did not expressly refer to the s3 notice when referring to how an Ordinance was “expressly declared to be in force.”

It appears that the 27 July 1945 Notice had not cured matters.  Rather it may have made them worse especially as the 27 July 1945 Notice purported to apply the 36 listed Falkland Islands Ordinances from the date of their enactment. 

One of these Ordinances dated from 1914, seven from the 1920s and 17 from the 1930s.  In other words the majority of the Ordinances being applied were being applied retrospectively.

This evidently caused constitutional turmoil.

The extent of the constitutional turmoil can best be shown in the preamble to the Revised Edition of the Laws (Amendment) (Dependencies) Ordinance 1950 which stated:

“WHEREAS by Article 10 (1) of the Falkland Islands Letters Patent 1948, it was provided that it should be lawful for the Governor of the Colony of the Falkland Islands and its Dependencies to make laws for the peace, order and good government of the Dependencies:

“AND WHEREAS since the coming into operation of the said Letters Patent certain Ordinances purporting to apply to the Dependencies have been enacted with the advice and consent of the Legislative Council of the Colony of the Falkland Islands, and doubts have arisen whether such Ordinances are valid in so far as they purport to apply to the Dependencies:

“AND WHEREAS it is expedient to apply the said Ordinances and certain other Ordinances to the Dependencies:

“AND WHEREAS by section 3 of the Dependencies Ordinance, 1908, the Governor in Council was empowered by notification in the Gazette to declare any Ordinance or part of any Ordinance to be in force in the Dependencies:

“AND WHEREAS by a notification in the Gazette dated 27th July, 1945 the Governor in Council declared that certain Ordinances applied to the Dependencies and had so applied since the date of their enactment and doubts have arisen concerning the validity of such notification:

“AND WHEREAS by a notification in the Gazette dated June, 28th 1947 the Governor declared certain Ordinances applied to the Dependencies from the date thereof, and doubts have arisen concerning the effect of such notification:

“AND WHEREAS by an Ordinance of the Colony of the Falkland Islands entitled the Revised Edition of the Laws (Amendment) Ordinance, 1950, the Revised Edition of the Laws Ordinance, 1943, and the other Ordinances specified in the Schedule thereto were amended as therein appears:

“AND WHEREAS it is expedient to apply to the Dependencies the said Revised Edition of the Laws (Amendment) Ordinance 1950, and certain of the other Ordinances, as amended by the said Revised Edition of the Laws (Amendment) Ordinance, 1950 specified in the said Schedule, and certain other Ordinances.”

This Ordinance did not end the constitutional turmoil. Several Ordinances were passed in the early 1950s largely devoted to producing the 1951 Consolidation. Many of these Ordinances were expressed to have retrospective effect, including Ordinances amending the Dependencies Ordinance 1908. The effect of Dependencies (Amendment) Ordinance 1950 s2 was to repeal Dependencies Ordinance 1908 s3 retrospectively from 1 January 1949. Arguably this undermined the legal basis for the notice of 9 January 1950 which at the time the Notice was published in the Gazette had been validly done. This Notice was therefore expressly preserved by Application of Colony Laws Ordinance 1951 s3.

The publication and coming into force of the 1951 Codification and the new constitutional arrangements required by Application of Colony Laws Ordinance (Cap 1 DS) which came into force on 1 January 1949 remedied this issue going forward.