UK Statutory Laws Applying in South Georgia and the South Sandwich Islands
There are two principal mechanisms by which UK statutory laws and secondary legislation can be applied to South Georgia and the South Sandwich Islands. First, the UK Crown and Parliament can legislate directly. Secondly South Georgia and the South Sandwich Islands can choose, by its own Ordinances to apply UK statutes etc. In terms of applying the law in practice, whilst the mechanism by which the law is applied has its relevance, and particularly with regard to the interpretation of the law little normally depends on it. This webpage seeks to assist those looking to determine whether and to what extent the law of England (the part of the UK that is relevant for determining the laws in Overseas Territories) applies.
Nothing on this website and particularly this webpage should be seen as authoritative or definitive. This webpage seeks to assist those considering what to research and where to research only. This website does not address the ambit of the common law – however it does consider statutory law.
This webpage does not seek to identify or reproduce UK laws in a number of key areas including aspects of maritime law nationality and sanctions laws applying in South Georgia and the South Sandwich Islands.
As noted elsewhere on this website South Georgia was claimed for the British Crown by Captain Cook on 17 January 1775. The UK Courts have confirmed that South Georgia was claimed by settlement (and the South Sandwich Islands by annexation) see R v Secretary of State for Foreign and Commonwealth Affairs ex parte Quark Fishing [2005] UKHL 57. Acquisition by settlement means that those settling the island brought with them both the common law of England and statutes of general application. What precisely that meant in 1775 or indeed before settlers started to arrive later has never been defined for South Georgia and the South Sandwich Islands.
An indication of what the laws originating in England (prior to 1 May 1707 and the Acts of Union with Scotland), or in Great Britain (prior to 1 January 1801) or the United Kingdom (thereafter) that may have applied or still do apply may be gleaned from the Schedules to the Falkland Islands Ordinance: Law Revision and Publication Ordinance 2017 which list UK Primary and Secondary legislation that applies in the Falkland Islands to this day. One can be reasonably confident that legislation of general application of the English Parliament (before the Union with Scotland), the Parliament of Great Britain (before the Union with Ireland) and the United Kingdom Parliament prior to 22 May 1900 (see below) did apply (and unless modified) continue to apply in South Georgia and the South Sandwich Islands.
Whilst the Falkland Islands lists of relevant statutory provisions are helpful they are not definitive for South Georgia and the South Sandwich Islands even for the period prior to 22 May 1900 for a number of reasons:
- First the Falkland Islands lists were created for enactment in 2017. This is some 32 years after South Georgia and the South Sandwich Islands became a separate Overseas Territory and nearly 70 years after the Falkland Islands Legislative Council lost its ability to legislate for South Georgia and the South Sandwich Islands (which were then part of the Falkland Islands Dependencies).
- In those years the Falkland Islands has itself legislated in a number of areas and has disapplied some UK statutes that did apply and applied those that did not. One key statute that is considered to apply in South Georgia and the South Sandwich Islands that does not form part of the Falkland Islands lists is:
- Offences Against the Person Act 1861 in the form that it was in as at 22 May 1900.
(The Falkland Islands has superseded this Victorian legislation by their Crimes Ordinance 2014 – hence it not appearing in the schedules to their Law Revision and Publication Ordinance 2017.)
- Offences Against the Person Act 1861 in the form that it was in as at 22 May 1900.
- Falkland Islands law has developed and diverged from South Georgia and the South Sandwich Islands law
When considering the application of UK laws the date of 22 May 1900 is important. This is the commencement date of the Interpretation and General Clauses Ordinance 1900 – an Ordinance that when enacted did apply to the Falkland Islands and its Dependencies
Section 31 of this Ordinance provided as follows:
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 22nd May 1900, are and shall be in force in the 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.
It is considered that this provision had the effect of ceasing the automatic application of English statutes of general application in South Georgia and the South Sandwich Islands. This provision did not affect the UK Crown and Parliament’s right to legislate for South Georgia and the South Sandwich Islands or the ability of South Georgia and the South Sandwich Islands to adopt UK laws. The Interpretation and General Clauses Ordinance 1977 (as amended) lists the following UK statues as applying in South Georgia and the South Sandwich Islands:
(1) Merchant Shipping Acts 1894-1948.
(2) Married Women’s Property Act 1907.
(3) Protection of Animals Act 1911.
(4) Forgery Act 1913.
(5) Trustee Act 1925.
(6) Marriage (Prohibited Degree of Relationship) Act 1931.
(7) Children and Young Persons Act 1933, section 1.
(8) Counterfeit Currency (Convention) Act 1935.
(9) Infanticide Act 1938.
(10) Criminal Justice Act 1948, section 2
The application of these statues in South Georgia and the South Sandwich Islands is subject to the provisions of s81A(2) which states:
So much of the enactments specified in the Schedule to this Ordinance as is not already in force in the Colony, and is capable of being applied therein by Ordinance, shall apply therein with such modifications as the circumstances of the Colony require.
So, having indicated the extent of some of the uncertainties in application of UK statutory law etc in South Georgia and the South Sandwich Islands the following tables list UK statutory laws that are known to apply.
This table contains Statutes from the English, Great British and UK Parliaments in force before 22 May 1900 which have been recognised by the Falkland Islands in their Law Revision and Publication Ordinance 2017 as forming part of Falkland Islands law and which may have some application (either in whole or in part) in South Georgia and the South Sandwich Islands. As noted above the 22 May 1900 date is of relevance as this is when the Interpretation and General Law Ordinance 1900 came into force and crystalised the application of English common law and statutes of general application in England in the Falkland Islands and their Dependencies (ie South Georgia and the South Sandwich Islands). This date and a like provision also appears in the current equivalent Ordinance – the Interpretation and General Clauses Ordinance 1977 s81A.
All of the statutes listed in this table, with the possible exception of Gun Barrel Proof Act 1868, are likely to be considered as being statutes of general application. The Gun Barrel Proof Act 1868 is listed on the www.legislation.co.uk website as being a UK local Act. This Act could have been adopted by the Falkland Islands at a time when such adoption applied also to its Dependencies however this has not been checked.
There are likely to be other UK statutes of general application that apply or applied in South Georgia and the South Sandwich Islands not contained in this table. The Falkland Islands Law Revision and Publication Ordinance 2017 legislation list many more statutes than those reproduced here – the principal exception being statutes that post date 22 May 1900.
Key:
FID: UK legislation applying to Falkland Islands and Dependencies (legislation originating prior to 3 October 1985)
FLK: UK legislation applying to the Falkland Islands (without making express reference to the Dependencies or South Georgia and the South Sandwich Islands whilst they were Dependencies)
OT: UK legislation applying to a number of Overseas Territories including South Georgia and the South Sandwich Islands
SG: UK legislation applying to South Georgia and the South Sandwich Islands
Eng: England
GB: Great Britain
UK: United Kingdom
UK*: listed as being a UK Local Act