Statutes of General Application

Statutes of General Application by virtue of South Georgia having been established by settlement

Determining what English common law and statutes of general application were received by:

South Georgia when claimed for the Crown by Captain Cook on 17 January 1775; or by
the South Sandwich Islands when they annexed; or by
the Falkland Islands and Dependencies (which necessarily included South Georgia and the South Sandwich Islands)

is necessarily a matter of judgement – and ultimately a question that may have to be determined by the courts.

Jurisprudence throughout the Commonwealth suggests that English law (both common law and statutes of general application) would continue to be received until at least such time as the Colony had its own legislature and legislated to cease receiving English law.

As is discussed on other pages on this website South Georgia and the South Sandwich Islands became part of the Falkland Islands and their Dependencies. Queen Victoria’s Letters Patent of 1843 established a legislature for the Falkland Islands and their Dependencies. Legislation was passed affecting South Georgia both generally (eg Interpretation and General Clauses Ordinance 1900) and specifically (such as by regulating Sealing and Whaling). This was prior to settlers living on the island c.1900 and prior to the Letters Patent of 1908 which established new governance arrangements for South Georgia and the South Sandwich Islands

The 1908 Letters Patent confirmed that the Governor on the advice of the Falkland Islands Legislative Council was and always had been empowered to legislate for South Georgia and the South Sandwich Islands. However, the constitutional arrangements made for South Georgia and the South Sandwich Islands in 1908 and subsequently effectively provided for the then Governor, and now Commissioner, to legislate alone.

Legislating to curtail the application of English law.

The Interpretation and General Law Ordinance 1900 contained the following provision:

Law of England in force

Subject to all local Ordinances and Orders in Council for the time being in force, the common law, the doctrines of equity, and the statutes of general application which were in force in England on the 22nd day of May 1900, are and shall be in force in this Colony, but so far only as the circumstances

of the Colony and its inhabitants and the limits of the Colonial jurisdiction permit, and subject to such qualifications as local circumstances render necessary.

This Ordinance was recast in 1949 as the Interpretation and General Law Ordinance 1949 (FLK No.6 of 1949). What had been section 31 in the Interpretation and General Law Ordinance 1900 was now revised into Interpretation and General Law Ordinance 1949 section 14.

Law of England in force

(1) The common law, rules of equity and the general statutes in force in England on the 1st day of January 1948 shall be in force in the Colony in so far as the circumstances of the Colony permit, and provided they are not inconsistent with or repugnant to any Ordinance or Order in Council in which case the Ordinance or Order in Council shall prevail.

(2)…

Note:

This provision provided for the common law, rules of equity and the general statutes in force in England as at 1 January 1948 to be in force.
This was evidently an error, but not an error that was recognised immediately as the Interpretation and General Law (Amendment) Ordinance 1949 (FLK No. 15 of 1949) amended section 14 of (FLK No.6 of 1949) by changing the date to 1st January 1949.
Matters were not improved by the Revised Edition of the Laws (Amendment) Ordinance 1951 (FLK No.2 of 1951) which made a change to the Revised Edition of the Laws Ordinance 1943 (FLK No. of 1943)(the Ordinance that was providing for what was to become the 1951 Consolidation of laws and referred to as the ‘Principal Ordinance’ as follows:

Insertion of new subsection (4) in section 5 of the Principal Ordinance

(4) Subject to the provision of section 13, the Commissioner shall omit from the Revised Edition, the laws in force in the Colony by virtue of subsection (1) of section 14 of the Interpretation and General Laws Ordinance 1949:

Provided always that, anything in this Ordinance to the contrary notwithstanding, the said laws shall remain in force until the same have been expressly repealed or shall have expired or become spent of had their effect.

In other words the Legislative Commissioner was not going to have to identify what English statute laws were being applied in the 1951 Consolidation of laws. This provision (renumbered as s5(3)) is reproduced in the 1951 Consolidation preface.

Matters were further compounded when under the new constitutional arrangements that had come into effect on 1 January 1949 the then Governor enacted the Interpretation and General Law (Amendment) (Dependencies) Ordinance 1951 (DS No.2 of 1951) (on 24 April 1951) expressly applying the Interpretation and General Law (Amendment) Ordinance 1951 (FLK No.2 of 1951) to the Dependencies with retrospective effect to 1 January 1949.
The error was evidently spotted in time for the publication of the 1951 Consolidation as Interpretation and General Law Ordinance Cap 33 reverted to the 22 May 1900 date.

Section 17 of Interpretation and General Law Ordinance 1949 asserted that this Ordinance applied to the Dependencies. Whether such a provision was effective under the then prevailing constitutional arrangements is open to debate and discussion. (See Dependencies Ordinance 1908 section 3).

Such issues do not need to trouble us today as this 1949 Ordinance was soon followed by a revised version Interpretation and General Law Ordinance Cap 33 contained within the 1951 Consolidation of laws. Many laws within this 1951 Consolidation still do apply in South Georgia and the South Sandwich Islands. This was effected by listing the applicable Ordinances in the 1951 Consolidation in the Schedule to the Application of Colony Laws (Cap 1 DS).

The Interpretation and General Law Ordinance Cap 33 contained as s14(1) the following:

Law of England in force

(1) The common law, rules of equity and the general statutes in force in England on the 22nd May 1900 shall be in force in the Colony in so far as the circumstances of the Colony permit, and provided they are not inconsistent with or repugnant to any Ordinance or Order in Council in which case the Ordinance or Order in Council shall prevail.

(2)…

Notes:

Along with those other parts of the 1951 Consolidation which applied in South Georgia and the South Sandwich Islands this Ordinance came into force on 12 March 1953 (see Proclamation No.2 of 1953)
Section 14(2) applied certain English statutes directly (see the [Application by Local Ordinance]) page.

In the fullness of time the Interpretation and General Law Ordinance Cap 33 has been repealed and replaced. The current iteration of this provision can be found in the Interpretation and General Clauses Ordinance (1977) as amended section 81A:

81A

Laws of England in force

(1) The common law and the general statutes in force in England on 22nd May 1900, shall be in force in the Colony in so far as the circumstances of the Colony permit, and provided they are not inconsistent with or repugnant to, any Ordinance or Order in Council.

(2) …

Given these provisions in local legislation ie:

Interpretation and General Law Ordinance 1900 s31;
[Interpretation and General Law Ordinance 1949; s14];
Interpretation and General Law Ordinance (Cap 33) s14; and
Interpretation and General Clauses Ordinance (1977) s81Ai

it is considered likely that the courts would accept that English common law and statutes of general application have not been received by South Georgia and the South Sandwich Islands since 22 May 1900.