[1] This United Kingdom Act excluded hereditary peers and peeresses from the House of Lords, subject to a temporary stay for a nominal group of representative peers; ss 1, 2 House of Lords Act 1999 (UK).
[2] Berkeley Peerage Case (1861) 8 HL Cas 21; 11 ER 333.
[3] Norfolk Earldom Case [1907] AC 10, 17, per Lord Davey.
[4] Ecclesiastical dignitaries have formed part of the House of Lords from the earliest times, though they were excluded from 1640 to 1661: Clergy Act 1640 (Eng) (16 Chas II c 27); Clergy Act 1661 (Eng) (13 Chas 2 c 2).
[5] Life peers are appointed by letters patent of the Sovereign, sealed with the Great Seal, under the authority of the Appellate Jurisdiction Acts 1876-1947 (UK). Despite the Life Peerages Act 1958 (6 & 7 Eliz II c 21) (UK), the Crown of the United Kingdom still does not have the power to confer peerages for life. Creations must be in accordance with one or other of the statutory measures: Wensleydale Peerage Case (1856) 5 HLC 958; 10 ER 1181. See also the Report as to the Dignity of a Peer of the Realm (London: HMSO, 1829 Reprint) vol 5 at p. 81.
[6] Sandra Barwick, "Canadian Prime Minister block's Blacks life peerage", Daily Telegraph (London), 19 June 1991. The standard procedure for the creation of "working" peers to perform regular parliamentary duties - rather than as an honour - calls for the creation to be endorsed by the leader of one of the three principal political parties. It will not, however, proceed unless and until it receives the approval of the Political Honours Scrutiny Committee, and of the Prime Minister, who advises The Queen to confer the title; House of Lords' Briefing Paper, "The Membership of the House of Lords" <http://www.publications.parliament.uk/pa/ld/hlmems.pdf> at 2 July 2002. There is now a House of Lords Appointments Commission, responsible for advising The Queen on the appointment of non-political members of the House of Lords, and for scrutinizing all nominations; <http://www.houseoflordsappointmentscommission.gov.uk/members.htm> at 2 July 2002.
[7] By letter dated 9 June 1999; cited in Black v Chrétien, unreported, Court of Appeal for Ontario, Laskin, Goudge and Feldman JJA, 18 May 2001, C33887, para 9 per Laskin JA.
[8] Sandra Barwick, "Canadian Prime Minister block's Blacks life peerage", Daily Telegraph (London), 19 June 1991. It was the standard practice to seek the approval of the Canadian government when it is proposed that a Canadian citizen was to be honoured.
[9] House of Commons Debates, 22 May 1919. As a resolution of the House of Commons it was not binding on the Crown or Parliament, nor was it actually followed by all successive Canadian governments. For one example of many, Richard Bennett, Prime Minister of Canada 1930-35, was created a viscount in 1941. There are numerous examples of lesser honours both before and since then.
[10] Black v Chrétien, unreported, Court of Appeal for Ontario, Laskin, Goudge and Feldman JJA, 18 May 2001, C33887, para 1 per Laskin JA.
[11] Black v Chrétien, unreported, Court of Appeal for Ontario, Laskin, Goudge and Feldman JJA, 18 May 2001, C33887, para 16 per Laskin JA.
[12] Black v Chrétien, unreported, Court of Appeal for Ontario, Laskin, Goudge and Feldman JJA, 18 May 2001, C33887, para 4 per Laskin JA.
[13] Black v Chrétien, unreported, Court of Appeal for Ontario, Laskin, Goudge and Feldman JJA, 18 May 2001, C33887, para 4 per Laskin JA.
[14] Black v Chrétien, unreported, Court of Appeal for Ontario, Laskin, Goudge and Feldman JJA, 18 May 2001, C33887, para 4 per Laskin JA.
[15] N. Cox, The Dichotomy of Legal Theory and Political Reality: The Honours Prerogative and Imperial Unity, 14 Australian Journal of Law and Society (1998-99)
[15] at 19.
[16] Peter Hogg, Constitutional Law in Canada Loose-Leaf Edition (Toronto: Carswell, 1995) at 1.9. See also Case of Proclamations (1611), 77 E.R. 1352 (K.B.).
[17] 12 Co Rep 74; 77 E.R. 1352 (K.B.).
[18] Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 4
[18] per Lord Roskill (generally); R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Everett [1989] 1 All ER 655, 660 per Taylor LJ (foreign affairs).
[19] Black v Chrétien, unreported, Court of Appeal for Ontario, Laskin, Goudge and Feldman JJA, 18 May 2001, C33887, paras 24, 31 per Laskin JA.
[20] Black v Chrétien, unreported, Court of Appeal for Ontario, Laskin, Goudge and Feldman JJA, 18 May 2001, C33887, paras 31-33 per Laskin JA.
[21] Letters Patent constituting the Office of Governor-General of Canada, effective 1 October 1947 (Canada Gazette, Part I, vol 81, p 3104).
[22] Letters Patent constituting the Office of Governor-General of Canada, effective 1 October 1947 (Canada Gazette, Part I, vol 81, p 3104).
[23] See, for example, N. Cox, The control of advice to the Crown and the development of executive independence in New Zealand, 13(1) Bond Law Review (2001) 166.
[24] Relying on Paul Lordon, Crown Law (Toronto: Butterworths, 1991) at p. 70; Black v Chrétien, unreported, Court of Appeal for Ontario, Laskin, Goudge and Feldman JJA, 18 May 2001, C33887, para 31 per Laskin JA.
[25] Black v Chrétien, unreported, Court of Appeal for Ontario, Laskin, Goudge and Feldman JJA, 18 May 2001, C33887, para 32 per Laskin JA.
[26] Operation Dismantle Inc v The Queen [1985] 1SCR 411 (SC Canada).
[27] Bridgid Hadfield, Judicial Review and the Prerogative Power in M. Sunkin and S. Payne, The Nature of the Crown (Oxford: Oxford University Press, 1999) at p. 199.
[28] Commentary on Dicey's Introduction to the Study of the Law of the Constitution 9 th ed. (London: Macmillan, 1950).
[29] F.A. Mann, Foreign Affairs in English Courts (Oxford: Clarendon Press, 1986) at p. 2. See also Barton v. Commonwealth of Australia (1974) A.L.J.R. 161 at 172. Cited in Black v Chrétien, unreported, Court of Appeal for Ontario, Laskin, Goudge and Feldman JJA, 18 May 2001, C33887, para 32 per Laskin JA.
[30] Department of Foreign Affairs and International Trade Act, R.S.C. 1985 c. E-22.
[31] The legal role of the Sovereign and Governor-General includes approving the appointment of diplomatic envoys, and (in rare cases) the signing of treaties and the proclamation of war. The conduct of foreign affairs is in the name of the Sovereign; R v Hampden (1637) 3 State Tr 826. A practical consequence of this latter role can be seen in Sir Paul Hasluck, The Government and the People, 1942-1945 (Canberra: Australian War Memorial, 1970) at pp. 4-12. The practical role of both include receiving State visitors and embarking upon State and official visits, and exercising the usual functions of a head of State in international law and practise; Ministry of Foreign Affairs and Trade, Presentation of Credentials in New Zealand (Wellington: Ministry of Foreign Affairs and Trade, 1997); Vernon Bogdanor, The Monarchy and the Constitution (Oxford: Clarendon Press, 1995).
[32] For which see N. Cox, The Theory of Sovereignty and the Importance of the Crown in the Realms of The Queen, 2(2) Oxford University Commonwealth Law Journal (2002).
[33] For example, the word "Sovereign" appears in New Zealand statutes only in the Sovereign's Birthday Observance Act 1952. In the Constitution Act 1986 s 2 "Crown" is defined as "Her Majesty the Queen in right of New Zealand; and includes all Ministers of the Crown and all departments".
[34] For this conceptual uncertainty, see Hayward, Janine, "In search of a treaty partner" (1995) Victoria University of Wellington PhD thesis; Interview with Sir Douglas Graham, 24 November 1999.
[35] The Crown as a Corporation, 17 Law Quarterly Review (1901) 131.
[36] According to Maitland, the crumbling of the feudal State threatened to break down the identification of the king and State, and as a consequence Coke recast the king as the legal representative of the State. It was Coke who first attributed legal personality to the Crown; F. Maitland, The Crown as a Corporation, 17 Law Quarterly Review 131 (1901). He recast the king as a corporation sole, permanent and metaphysical. The king's corporate identity also drew support from the doctrine of succession that the king never dies; W. Stubbs, The Constitutional History of England (Oxford: Clarendon Press, 1906) vol ii, at p. 107
[37] F. Maitland, The Crown as a Corporation, 17 Law Quarterly Review 131 (1901).
[38] [1946] AC 543, 555 (HL).
[39] It has also been accepted by the Supreme Court of Canada: Verreault v Attorney-General of Quebec [1977] 1 SCR 41, 47; Attorney-General of Quebec v Labrecque [1980] 2 SCR 1057, 1082.
[40] Philip Joseph, Suspending Statutes Without Parliament's Consent, 14 New Zealand Universities Law Review 282 (1991), 287.
[41] A concept which is alive today, in part as a substitute for a more advanced concept of the constitution; Interview with Sir Douglas Graham, 24 November 1999.
[42] N. Cox, The Dichotomy of Legal Theory and Political Reality: The Honours Prerogative and Imperial Unity, 14 Australian Journal of Law and Society (1998-99) 15 at 19.
[43] N. Cox, The control of advice to the Crown and the development of executive independence in New Zealand, 13(1) Bond Law Review (2001) 166.
[44] Black v Chrétien, unreported, Court of Appeal for Ontario, Laskin, Goudge and Feldman JJA, 18 May 2001, C33887, para 33 per Laskin JA.
[45] Black v Chrétien, unreported, Court of Appeal for Ontario, Laskin, Goudge and Feldman JJA, 18 May 2001, C33887, para 35 per Laskin JA.
[46] Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374.
[47] N. Cox, The Dichotomy of Legal Theory and Political Reality: The Honours Prerogative and Imperial Unity, 14 Australian Journal of Law and Society 15 at 19 (1998-99), cited with approval in Black v Chrétien, unreported, Court of Appeal for Ontario, Laskin, Goudge and Feldman JJA, 18 May 2001, C33887, para 58 per Laskin JA.
[48] Black v Chrétien, unreported, Court of Appeal for Ontario, Laskin, Goudge and Feldman JJA, 18 May 2001, C33887, para 60 per Laskin JA.
[49] Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374.
[50] Operation Dismantle Inc v The Queen [1985] 1SCR 411, 465 per Dickson J (SC Canada), approved Black v Chrétien, unreported, Court of Appeal for Ontario, Laskin, Goudge and Feldman JJA, 18 May 2001, C33887, para 62 per Laskin JA.
[51] Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 418 per Lord Roskill.
[52] As when a Prime Minister call as election, he or she is advising the Governor-General to call an election, not doing so himself.
[53] N. Cox, The control of advice to the Crown and the development of executive independence in New Zealand, 13(1) Bond Law Review (2001) 166.
[54] "The attraction of monarchy for the Fathers of Confederation lay in the powerful counterweight it posed to the potential for federalism to fracture"; David Smith, The First Principle of Canadian Government (Toronto: University of Toronto Press, 1995) 8 relying on WL Morton. Provincial powers grew as the provincial ministries were accepted as responsible advisers of the Crown in their own right.
[55] R v Secretary of State for Foreign and Commonwealth Affairs [1982] QB 892, 911 per Lord Denning MR.
[56] Herbert Evatt, The Royal Prerogative commentary by Zines (Sydney: The Law Book Co, 1987) c1-3.
[57] See the Borden Memorandum 1919, in A.B. Keith, Speeches and Documents on the British Dominions 1918-1931 (London: Oxford University Press, 1932) 13. The position was firmly established by the late nineteenth century that a Canadian Lieutenant-Governor was as much a representative of Her Majesty as the Governor-General was; Maritime Bank of Canada v Receiver-General of British Columbia [1892] AC 437, 443.
[58] Rt Hon William Massey, 20 June 1921, in A.B. Keith, Speeches and Documents on the British Dominions (London: Oxford University Press, 1932) 59-62.
[59] Report of the Inter-Imperial Relations Committee, Imperial Conference (1926) Parliamentary Papers, vol xi 1926 cmd 2768.
[60] See the Report of the Inter-Imperial Relations Committee, Imperial Conference (1926) Parliamentary Papers, vol xi 1926 cmd 2768.
[61] At the Peace Conference after the end of the First World War, the dominions (and India) were represented by delegates; Rules of Representation at the Peace Conference of Paris, 1919, cited in A.B. Keith, Speeches and Documents on the British Dominions 1918-1931 (London: Oxford University Press, 1932) p. 13. The Annex to the Covenant of the League of Nations, 1919, listed the British Empire as an Original Member of the League of Nations. This was described as including Canada, Australia, South Africa, New Zealand, and India (A.B. Keith, Speeches and Documents on the British Dominions 1918-1931 (London: Oxford University Press, 1932) p. 30). Both of these indicated a transitional status for the dominions. By 1928, and the signing of the Treaty for the Renunciation of War (the Paris Pact), the independence of the dominions was clearer, as separate plenipotentiaries signed on behalf of the dominions (A.B. Keith, Speeches and Documents on the British Dominions 1918-1931 (London: Oxford University Press, 1932) at p. 407).
[62] Imperial Conference (1926) Parliamentary Papers, vol 11 1926 cmd 2768.
[63] E. Jenks, Imperial Conference and the Constitution, 3 Commonwealth Law Journal 13, 21 (1927); A.B. Keith, Responsible Government in the Dominions 2nd ed (Oxford: Clarendon Press, 1928) vol 1 at p. xviii.
[64] Commonwealth Parliamentary Debates (House of Representatives, 22 March 1927) vol 115 p 863. cf Edward Jenks, Imperial Conference and the Constitution, 3 Cambridge Law Journal 13 (1927), 21.
[65] Responsible Government in the Dominions 2nd ed (Oxford: Clarendon Press, 1928) vol 1 at p. xviii.
[66] Some support for this view can be found in remarks in Roach v Canada [1992] 2 FC 173, 177.
[67] Canada and South Africa chose to make separate proclamations of war. Both were able to do so because in those Dominions there had clearly been a delegation by the king to the Governor-General of the prerogative to declare war and make peace, in Canada under the Seals Act 1939, and in South Africa, under the Royal Executive Functions and Seals Act 1934 and the Status of the Union Act 1934. After some uncertainty, both Australia and New Zealand followed these precedents; Sir Paul Hasluck, The Government and the People, 1939-1941 (Canberra: Australian War Memorial, 1952) at pp. 149-151; New Zealand Gazette 9 December 1941 p 3877.
[68] As indeed, she did when creating the distinguished New Zealand judge Sir Robin Cooke a peer in 1996; N. Cox, Lord Cooke of Thorndon, New Zealand Law Journal 123 (1996).
[69] 1988 Policy of the Clerk of the Privy Council (Respecting the Awarding of an Order, Decoration and Medal by a Commonwealth or a Foreign Government); 1968 Regulation of the Secretary of State (Respecting the Acceptance and Wearing by Canadians of Commonwealth and Foreign Orders, Decorations and Medals).
[70] Professor George Bain, Vice-Chancellor of The Queen's University Belfast, and Terence Matthews, for services to industry and to Wales; London Gazette, no. 56237, Supplement No 1, 16 June 2001.
[71] 1988 Policy of the Clerk of the Privy Council (Respecting the Awarding of an Order, Decoration and Medal by a Commonwealth or a Foreign Government); 1968 Regulation of the Secretary of State (Respecting the Acceptance and Wearing by Canadians of Commonwealth and Foreign Orders, Decorations and Medals).
[72] George Jones, "Conrad Black finally made a life peer", Daily Telegraph (London), 12 September 2001.
[73] "Conrad Black to give up Canadian citizenship", Daily Telegraph (London), 19 May 2001.