Advice (constitutional)
Encyclopedia
Advice, in constitutional law
, is formal, usually binding, instruction given by one constitutional officer of state to another. Especially in parliamentary systems of government, Heads of state
often act on the basis of advice issued by prime ministers
or other government ministers. For example, Elizabeth II formally appoints her British ministers
on the advice of the British Prime Minister
.
Among the most prominent forms of advice offered are:
In some states, the duty to accept advice is legally enforceable, having been created by a constitution or statute. For example, the Basic Law of Germany
requires the President
to appoint federal ministers on the advice of the Chancellor
. In others, especially under the Westminster system
, advice may legally be rejected; for example, in several Commonwealth realm
s, the Queen is not legally obliged to accept the advice of her ministers; this lack of obligation forms part of the basis for the reserve powers. Nevertheless, in ordinary circumstances, refusal to accept ministerial advice would almost certainly provoke a constitutional crisis
.
Although most advice is binding, in comparatively rare instances, it is not. For example, many heads of state may choose not to follow advice on a dissolution of parliament where the government has lost the confidence of that body. In some cases, whether the advice is mandatory or truly just advisory depends on the context and authority of the person offering it. Hence the President of Ireland
ordinarily is obliged to dissolve Dáil Éireann
(the House of Representatives) when advised to do so by the Taoiseach
(prime minister). However, where a taoiseach has (in the words of the Irish Constitution) "ceased to retain the support of a majority in Dáil Éireann" (i.e., lost the confidence of parliament) the President has the option of refusing to follow that advice.
Constitutional law
Constitutional law is the body of law which defines the relationship of different entities within a state, namely, the executive, the legislature and the judiciary....
, is formal, usually binding, instruction given by one constitutional officer of state to another. Especially in parliamentary systems of government, Heads of state
Head of State
A head of state is the individual that serves as the chief public representative of a monarchy, republic, federation, commonwealth or other kind of state. His or her role generally includes legitimizing the state and exercising the political powers, functions, and duties granted to the head of...
often act on the basis of advice issued by prime ministers
Prime minister
A prime minister is the most senior minister of cabinet in the executive branch of government in a parliamentary system. In many systems, the prime minister selects and may dismiss other members of the cabinet, and allocates posts to members within the government. In most systems, the prime...
or other government ministers. For example, Elizabeth II formally appoints her British ministers
Minister of the Crown
Minister of the Crown is the formal constitutional term used in the Commonwealth realms to describe a minister to the reigning sovereign. The term indicates that the minister serves at His/Her Majesty's pleasure, and advises the monarch, or viceroy, on how to exercise the Crown prerogatives...
on the advice of the British Prime Minister
Prime Minister of the United Kingdom
The Prime Minister of the United Kingdom of Great Britain and Northern Ireland is the Head of Her Majesty's Government in the United Kingdom. The Prime Minister and Cabinet are collectively accountable for their policies and actions to the Sovereign, to Parliament, to their political party and...
.
Among the most prominent forms of advice offered are:
- Advice to appoint and remove individual ministers.
- Advice to dissolve parliamentParliamentA parliament is a legislature, especially in those countries whose system of government is based on the Westminster system modeled after that of the United Kingdom. The name is derived from the French , the action of parler : a parlement is a discussion. The term came to mean a meeting at which...
. - Advice to deliver formal statements, such as a Speech from the throneSpeech from the ThroneA speech from the throne is an event in certain monarchies in which the reigning sovereign reads a prepared speech to a complete session of parliament, outlining the government's agenda for the coming session...
.
In some states, the duty to accept advice is legally enforceable, having been created by a constitution or statute. For example, the Basic Law of Germany
Basic Law for the Federal Republic of Germany
The Basic Law for the Federal Republic of Germany is the constitution of Germany. It was formally approved on 8 May 1949, and, with the signature of the Allies of World War II on 12 May, came into effect on 23 May, as the constitution of those states of West Germany that were initially included...
requires the President
President of Germany
The President of the Federal Republic of Germany is the country's head of state. His official title in German is Bundespräsident . Germany has a parliamentary system of government and so the position of President is largely ceremonial...
to appoint federal ministers on the advice of the Chancellor
Chancellor of Germany
The Chancellor of Germany is, under the German 1949 constitution, the head of government of Germany...
. In others, especially under the Westminster system
Westminster System
The Westminster system is a democratic parliamentary system of government modelled after the politics of the United Kingdom. This term comes from the Palace of Westminster, the seat of the Parliament of the United Kingdom....
, advice may legally be rejected; for example, in several Commonwealth realm
Commonwealth Realm
A Commonwealth realm is a sovereign state within the Commonwealth of Nations that has Elizabeth II as its monarch and head of state. The sixteen current realms have a combined land area of 18.8 million km² , and a population of 134 million, of which all, except about two million, live in the six...
s, the Queen is not legally obliged to accept the advice of her ministers; this lack of obligation forms part of the basis for the reserve powers. Nevertheless, in ordinary circumstances, refusal to accept ministerial advice would almost certainly provoke a constitutional crisis
Constitutional crisis
A constitutional crisis is a situation that the legal system's constitution or other basic principles of operation appear unable to resolve; it often results in a breakdown in the orderly operation of government...
.
Although most advice is binding, in comparatively rare instances, it is not. For example, many heads of state may choose not to follow advice on a dissolution of parliament where the government has lost the confidence of that body. In some cases, whether the advice is mandatory or truly just advisory depends on the context and authority of the person offering it. Hence the President of Ireland
President of Ireland
The President of Ireland is the head of state of Ireland. The President is usually directly elected by the people for seven years, and can be elected for a maximum of two terms. The presidency is largely a ceremonial office, but the President does exercise certain limited powers with absolute...
ordinarily is obliged to dissolve Dáil Éireann
Dáil Éireann
Dáil Éireann is the lower house, but principal chamber, of the Oireachtas , which also includes the President of Ireland and Seanad Éireann . It is directly elected at least once in every five years under the system of proportional representation by means of the single transferable vote...
(the House of Representatives) when advised to do so by the Taoiseach
Taoiseach
The Taoiseach is the head of government or prime minister of Ireland. The Taoiseach is appointed by the President upon the nomination of Dáil Éireann, the lower house of the Oireachtas , and must, in order to remain in office, retain the support of a majority in the Dáil.The current Taoiseach is...
(prime minister). However, where a taoiseach has (in the words of the Irish Constitution) "ceased to retain the support of a majority in Dáil Éireann" (i.e., lost the confidence of parliament) the President has the option of refusing to follow that advice.
See also
- advice and consentAdvice and consentAdvice and consent is an English phrase frequently used in enacting formulae of bills and in other legal or constitutional contexts, describing a situation in which the executive branch of a government enacts something previously approved of by the legislative branch.-General:The expression is...
- King-Byng AffairKing-Byng AffairThe King–Byng Affair was a Canadian constitutional crisis that occurred in 1926, when the Governor General of Canada, the Lord Byng of Vimy, refused a request by his prime minister, William Lyon Mackenzie King, to dissolve parliament and call a general election....
- ConstitutionalismConstitutionalismConstitutionalism has a variety of meanings. Most generally, it is "a complex of ideas, attitudes, and patterns of behavior elaborating the principle that the authority of government derives from and is limited by a body of fundamental law"....
- Constitutional economicsConstitutional economicsConstitutional economics is a research program in economics and constitutionalism that has been described as extending beyond the definition of 'the economic analysis of constitutional law' in explaining the choice "of alternative sets of legal-institutional-constitutional rules that constrain the...
- Rule according to higher lawRule according to higher lawThe rule according to a higher law means that no written law may be enforced by the government unless it conforms with certain unwritten, universal principles of fairness, morality, and justice...