1889 and 1978 definition

Two acts in the Parliament of the United Kingdom define the current status of British possessions: the Interpretation Act 1978^{[14][15][16][3][1]} and the Interpretation Act 1889.^[3][14] In the reign of Queen Victoria (r. 1837–1901), the Interpretation Act 1889 defined the British possessions in its article 18, section 2:^{[17][14]: 37–38}

"British possession" means any part of Her Majesty's dominions outside the United Kingdom; and where parts of such dominions are under both a central and a local legislature, all parts under the central legislature are deemed, for the purposes of this definition, to be one British possession.

— Interpretation Act 1889, 18.2^[18]

According to the 1890 1st edition of Stroud's Judicial Dictionary, this definition applied to "In all Acts of Parliament passed after the 31st Dec. 1889".^[19] According to Kenneth Roberts-Wray's 1966 Commonwealth and Colonial Law, this definition "includes the Channel Islands and the Isle of Man for they are not in the United Kingdom, q. v.".^[17]: 38 The last part of this definition had already appeared in earlier legislation, including in the Patents, Designs, and Trade Marks Act 1883.^{[17]: 38, note 81} Hence, according to the 1933 11th volume of the 2nd edition of Halsbury's Laws of England edited by Douglas Hogg, 1st Viscount Hailsham:^[20]: 4

A British possession is defined by statute to be any part of the British dominions except the United Kingdom, and its territorial waters. When parts of such dominions are under both a central and a local legislature, all parts under the central legislature are deemed to be one British possession. But this principle applies only to matters falling within the authority of the central legislature.

— Halsbury's Laws of England, 2nd ed., Vol. XI, "Dominions, colonies, possessions, protectorates, and mandated territories", Part 1, section 1, subsection 1 "Definitions", 2 "British possession".

Halsbury's Laws of England noted that a different definition is used where necessary to include subnational entities as British possessions, rather than only the federations of which they are part: "In certain Acts the term includes both the part under the central legislature and those under local legislatures" and "These cases are necessary where the central legislature is denied the power to deal with the subject-matter".^{[20]: 4, note i [17]: 38}

In the reign of Elizabeth II (r. 1952–2022), the Interpretation Act 1978 defined the British possessions in its schedule 1,^[1] with text identical to that in the 1889 act.^[1] According to Ian Hendry and Susan Dickson in the 2018 2nd edition of British Overseas Territories Law, "the definition is evidently very wide" and the term is "anomalous as far as independent states covered by it are concerned".^[2]

According to Roberts-Wray in 1966: "This expression is now rarely used; like other terms it is discredited. For obvious reasons it clearly implies subordination. That objection would be overcome to some extent if it did not exclude the United Kingdom; but the word "British" would still be questionable for the same reason as in the case of "the British Commonwealth of Nations.""^[17]: 40 According to Michael J. Strauss's 2015 Territorial Leasing in Diplomacy and International Law, "it is not uncommon for countries to use the term "possessions" for territories they control".^[21] According to Hendry and Dickson in 2018, while "the term appears in some statutes, its use in modern times is rare".^[2] According to the 2021 reissue of the 13th volume of the 5th edition of Halsbury's Laws of England, the terms "'British possession', 'British settlement', 'colony', 'protectorate' and 'protected state'" are "now effectively obsolete".^{[22][lower-alpha 1]}

Early definitions

Later definitions

Admiralty law

In British admiralty law under the Merchant Shipping Act 1995, a "relevant British possession", includes the Crown Dependencies (the Isle of Man and the Channel Islands) and "any colony" (the self-governing British Overseas Territories).^{[4][5][6][7][8][9][10]} If a ship is "is registered under the law of a relevant British possession", it may be classed as a "British ship". Accordingly, "The flag which every British ship is entitled to fly is the red ensign (without any defacement or modification)" but "in the case of British ships registered in a relevant British possession, any colours consisting of the red ensign defaced or modified whose adoption for ships registered in that possession is authorised".^[9] As defined by a statutory instrument of 2008, the "relevant British possessions" are:^[8][10]

According to the Merchant Shipping Act 1995, "The flag which every British ship is entitled to fly is the red ensign (without any defacement or modification)".^[9] British ships from "relevant British possessions" are entitled to fly modified or "defaced" versions of this flag.

•  Anguilla
•  Bermuda
•  British Virgin Islands
•  Cayman Islands
•  Falkland Islands
•  Gibraltar
•  Guernsey
•  Isle of Man
•  Jersey
•  Montserrat
•  Saint Helena
•  Turks and Caicos Islands

Copyright law

According to D. P. O'Connell, writing on the terms "British possession" and "Her Majesty's dominions" in The American Journal of International Law in 1964, "Where necessary, courts have construed these expressions to include territories which have gained republican status, but which have retained British legislation".^[52]

According to T. G. Agitha and N. S. Gopalakrishnan writing in 2013, in a copyright case in the Madras High Court before the introduction of the Indian Copyright Act, 1957, the defendant accused of violating copyright claimed that the Copyright Act 1911 (as modified by the Indian Copyright Act 1914) "being a law for the publishers of the UK, ceased to be operative in India when India became independent in 1947 and particularly after the country attained Republican status in January 1950, with the result that there was, at the relevant period, no copyright in India in published works".^{[53]: 117–118} The defence had maintained "that under the terms of section 25 of the 1911 Act itself its provisions were inapplicable to self-governing dominions and when India attained the status of a self-governing dominion by reason of the Indian Independence Act 1947, the 1911 Act ceased to apply in India"^[53]: 118 According to O'Connell, the defence argued that "since India had ceased to be a "British possession" and copyright protection is reciprocally predicated upon original publication in a "British possession," the Act could not apply. The court rejected the defense".^[52]: 44 According to Agitha and Gopalakrishnan, the Madras High Court's judgement rejecting the defendant's arguments was "in line with the accepted view in international law that the emergence of a new state or a change of sovereignty within a state does not bring about any change in the private rights of its citizens or the law governing such rights".^[53]: 119

Extradition law

In the law of South Africa, the status of the Union of South Africa as a "British possession" was tested in an extradition case disputing jurisdiction between the Union of South Africa and Basutoland.^[54] Since the British Fugitive Offenders Act 1881 stated that "Where two British possessions adjoin, a person accused of an offence committed on or within the distance of five hundred yards from the common boundary of such possessions may be apprehended, tried, and punished in either of such possessions", a court in Mohale's Hoek claimed jurisdiction to try the case of defendant whose crime was alleged to have been committed in South Africa, but within 500 yards (460 m) of the Basutoland border. Having been convicted, the defence appealed, arguing that a Basutoland court had no jurisdiction because the Union of South Africa was not a "British possession" under the Status of the Union Act, 1934, which, following the Statute of Westminster 1931, had made South Africa a sovereign state. The court dismissed the appeal on the grounds that the Union of South Africa was indeed a "British possession", and that the Fugitive Offenders Act 1881 applied.^[54] In 1937, W. P. M. Kennedy, commenting on this case in the University of Toronto Law Journal, suggested that the Dominion of Canada might have ceased to be a "British possession", writing that 'since, under the Statute of Westminster, Dominions are no longer colonies "notwithstanding anything in the Interpretation Act, 1889", it is submitted that they are no longer "British possession"', but admitting that 'the point is arguable'.^[54]

The Fugitive Offenders Act 1881 ceased to apply to the Union of Burma and the Republic of Ireland when those countries withdrew from the Commonwealth.^[11]: 487 Under the Ireland Act 1949, British laws which previously extended to the Irish Free State as part of "His Majesty's dominions" continued to apply to the Republic of Ireland, but the same was not true of those which applied to British possessions, even though under the Interpretation Act the British possessions are defined as being "any part of Her Majesty's dominions outside the United Kingdom".^{[17]: 38–40} According to Roberts-Wray, "If that had been the intention it would have been made clear; the saving provision in the Ireland Act operates, it is submitted, only on direct references to Her Majesty's dominions and not, via the Interpretation Act, on references to British possession".^{[17]: 38–40}

In the law of India, the Supreme Court of India determined in 1954 that relevant provisions of the Fugitive Offenders Act 1881 did not apply to India, as India had ceased to be a British possession on adoption of the republican Constitution of India in 1950.^{[55]: 25–26 [11]: 487 [52]: 44–45 [56]: 119 and note 18} According to Paul O'Higgins writing for The International and Comparative Law Quarterly in 1960: "From the point of view, however, of United Kingdom courts the Act still applies in relation to India. This is because of the India (Consequential Provisions) Act, 1949, which provided for the continued application of existing law in relation to India, notwithstanding its new status as a Republic."^[11]: 487

Writing in The American Journal of International Law in 1964, D. P. O'Connell noted that, under the Fugitive Offenders Act 1881, "rendition has been successfully claimed by or from India, Pakistan, Ghana, Cyprus, Nigeria and the United Kingdom, and by Australia in Ceylon, without the defense being successful that, in virtue of independence, the Act could no longer apply".^[52]: 44 According to O'Connell: "However, it must be noticed that, at the time of rendition, Pakistan, Nigeria and Ceylon were still monarchies, and the United Kingdom statutorily maintained the Fugitive Offenders Act in relation to India and Cyprus".^[52]: 44

In the law of New Zealand, New Zealand ceased to be a British possession as a result of the New Zealand Constitution Amendment Act 1973, which modified the provisions of the Statute of Westminster Adoption Act 1947.^[57][58] This was recognized in court in 1976, when David Lange argued that the country was not a "British possession" under the terms of the Fugitive Offenders Act 1881.^[57][58] While Lange was prime minister of New Zealand, the New Zealand Parliament passed the Constitution Act 1986, which ended the power of the Parliament of the United Kingdom to legislate for New Zealand.^[57][58]

Criminal law

The question of British possession status arose in the 2004 Pitcairn Islands sexual assault trial. A number of men on the Pitcairn Islands were accused of sexual offences and prosecuted under British statutes. Because the islands had been founded by mutineers from the HMS Bounty and lightly administered by the British, including a period of administration by Fiji prior to its independence, the defendants on appeal raised the question as to whether Pitcairn Islanders were British subjects liable to prosecution under British law. The Privy Council denied the appeal, having found Pitcairn to be a British possession under the British Settlements Act 1887, which had been extended to the Pacific by an order in council in 1893 and to Pitcairn in particular in 1898 by the Secretary of State for the Colonies, Joseph Chamberlain.^{[59]: 436, 438, 441–442, 447 [60]} According to Gordon Woodman, "In the case of Pitcairn the starting-point for argument was the proposition that the territory was a British possession".^[61] In 1790 Pitcairn was a terra nullius, and according to Andrew Lewis "Once a British possession, it would require a deliberate act of abandonment or cession to another to change its status".^[62] According to Dino Kritsiotis and A. W. B. Simpson, "the finer legal points as to the actual timing or moment of territorial acquisition were not regarded as essential to, or determinative of, the prosecution's case".^[63]

Nationality law

From 1867, Chinese people born in a British possession, together with their children, were one of four categories of people classed as "Anglo-Chinese" and entitled to a degree of British protection by agreement with the Qing dynasty.^{[64]: 282, note 10}

In the first three decades of the 20th century, naturalization in the British Empire was governed by the Naturalisation Act 1870 and by a report circulated at the 1902 Colonial Conference, which sought to establish a common standard of naturalization to be recognized throughout the empire for both internal and external purposes. The interdepartmental report allowed "a Secretary of State, or the Governor of a British possession, to confer the status of a British subject upon persons who fulfil the requisite conditions in any part of the British Dominions".^[65]