Disallowance and reservation
Encyclopedia
Disallowance and reservation are constitutional powers that theoretically exist in certain Commonwealth realm
s to delay or overrule legislation. Originally created to retain the Crown's authority over colonial authorities across the British Empire
, these powers are now generally obsolete, or have been formally abolished.
and colonial territories, the legislature is typically constituted of two legislative chambers, together with the Governor-General
(or colonial Governor) acting in the name of the Sovereign. Once a bill
has passed through the chambers, it is presented to the Governor-General for assent on the Sovereign's behalf
. The Governor-General was formally instructed
(or required by the constitution
or by statute) in certain circumstances to reserve a bill for the Sovereign's "pleasure", i.e. the Governor-General would neither assent nor refuse assent to the bill, but instead pass it to the Secretary of State for the Colonies
in the United Kingdom
for consideration by the British government; assent, if then given, would be by the King (or Queen) in Council
.
A bill assented to by a Governor-General or colonial Governor would pass into law, but might still be disallowed by the King or Queen in Council. Once notice of the disallowance was communicated to the colonial authorities, the Act in question would cease to operate as law. Disallowance was not retrospective, so anything validly done under an Act's terms before its disallowance remained legal.
Sometimes a bill that had passed into law might be suspended by its own terms until the Sovereign's pleasure was made known, i.e. until the British government had advised the colonial authorities whether they were prepared to accept the legislation. Approval, if given, would again be by the King or Queen in Council.
All three methods were originally used to ensure that legislation was not repugnant to English law
, did not exceed a legislature's formal competence, did not interfere with the British government's imperial or foreign policies, or even simply because the British government did not agree with the legislation.
The use of these powers declined over the course of the nineteenth century, in particular because of the abolition of the doctrine of general repugnancy by the Colonial Laws Validity Act 1865
, and because the British government began to leave it to the court system to rule on the vires of colonial legislation. With the development of responsible government
, the use of these powers declined even more rapidly. The 1926 imperial conference approved a committee report that stated:
The Report of the Conference on the Operation of Dominion Legislation and Merchant Shipping Legislation, 1929 (Cmd 3479), which was approved by the 1930 imperial conference, stated that both the prerogative and statutory powers of disallowance had "not been exercised for many years" in relation to dominion
legislation (para. 19), and more specifically:
Together with the change from the appointment of Governors-General being made on the formal advice of the British government to being made on the advice of the relevant dominion government, the effect of these two conferences was to put an end to the use of both reservation and disallowance as meaningful powers.
rather than in the Sovereign, remained in use for much longer; the last disallowance of a provincial law occurred in April 1943, in relation to Alberta
's "An Act to Prohibit the Sale of Lands to any Enemy Aliens and Hutterite
s for the Duration of the War", while the last reservation of a provincial law occurred in 1961.
Early in Confederation these powers were exercised relatively frequently, but soon fell into disuse. Currently, some believe that by constitutional convention, they are regarded as spent power
s even though they have never been formally abolished. However, the ability of the Governor General of Canada
to disallow legislation has never been tested since it was last used in 1943. An attempt was made in 1971 to remove both powers from the Constitution
with the Victoria Charter
, but this failed. The First Ministers decided not to include abolition in the Constitution Act, 1982
.
of a province, deferring the power of assent to the Governor General (i.e. for the consideration of the federal government).
The reservation by a provincial Lieutenant Governor was in 1961, in Saskatchewan
. Lieutenant Governors have used their power of reservation a total of 112 times, with the largest number being in the province of Manitoba
(21 times).
to strike down various laws of Alberta
's Social Credit government. Since 1911, disallowance has been used only 17 times.
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 to delay or overrule legislation. Originally created to retain the Crown's authority over colonial authorities across the British Empire
British Empire
The British Empire comprised the dominions, colonies, protectorates, mandates and other territories ruled or administered by the United Kingdom. It originated with the overseas colonies and trading posts established by England in the late 16th and early 17th centuries. At its height, it was the...
, these powers are now generally obsolete, or have been formally abolished.
General principles
In CommonwealthCommonwealth of Nations
The Commonwealth of Nations, normally referred to as the Commonwealth and formerly known as the British Commonwealth, is an intergovernmental organisation of fifty-four independent member states...
and colonial territories, the legislature is typically constituted of two legislative chambers, together with the Governor-General
Governor-General
A Governor-General, is a vice-regal person of a monarch in an independent realm or a major colonial circonscription. Depending on the political arrangement of the territory, a Governor General can be a governor of high rank, or a principal governor ranking above "ordinary" governors.- Current uses...
(or colonial Governor) acting in the name of the Sovereign. Once a bill
Bill (proposed law)
A bill is a proposed law under consideration by a legislature. A bill does not become law until it is passed by the legislature and, in most cases, approved by the executive. Once a bill has been enacted into law, it is called an act or a statute....
has passed through the chambers, it is presented to the Governor-General for assent on the Sovereign's behalf
Royal Assent
The granting of royal assent refers to the method by which any constitutional monarch formally approves and promulgates an act of his or her nation's parliament, thus making it a law...
. The Governor-General was formally instructed
Royal instructions
Royal instructions are formal instructions issued to Governors of the United Kingdom's colonial dependencies. They have also been issued to the Governor General of certain Commonwealth realms.Traditionally the royal instructions were issued to a Governor to:...
(or required by the constitution
Constitution
A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is...
or by statute) in certain circumstances to reserve a bill for the Sovereign's "pleasure", i.e. the Governor-General would neither assent nor refuse assent to the bill, but instead pass it to the Secretary of State for the Colonies
Secretary of State for the Colonies
The Secretary of State for the Colonies or Colonial Secretary was the British Cabinet minister in charge of managing the United Kingdom's various colonial dependencies....
in the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
for consideration by the British government; assent, if then given, would be by the King (or Queen) in Council
Privy Council of the United Kingdom
Her Majesty's Most Honourable Privy Council, usually known simply as the Privy Council, is a formal body of advisers to the Sovereign in the United Kingdom...
.
A bill assented to by a Governor-General or colonial Governor would pass into law, but might still be disallowed by the King or Queen in Council. Once notice of the disallowance was communicated to the colonial authorities, the Act in question would cease to operate as law. Disallowance was not retrospective, so anything validly done under an Act's terms before its disallowance remained legal.
Sometimes a bill that had passed into law might be suspended by its own terms until the Sovereign's pleasure was made known, i.e. until the British government had advised the colonial authorities whether they were prepared to accept the legislation. Approval, if given, would again be by the King or Queen in Council.
All three methods were originally used to ensure that legislation was not repugnant to English law
English law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
, did not exceed a legislature's formal competence, did not interfere with the British government's imperial or foreign policies, or even simply because the British government did not agree with the legislation.
The use of these powers declined over the course of the nineteenth century, in particular because of the abolition of the doctrine of general repugnancy by the Colonial Laws Validity Act 1865
Colonial Laws Validity Act 1865
The Colonial Laws Validity Act 1865 is an Act of the Parliament of the United Kingdom. Its long title is "An Act to remove Doubts as to the Validity of Colonial Laws"....
, and because the British government began to leave it to the court system to rule on the vires of colonial legislation. With the development of responsible government
Responsible government
Responsible government is a conception of a system of government that embodies the principle of parliamentary accountability which is the foundation of the Westminster system of parliamentary democracy...
, the use of these powers declined even more rapidly. The 1926 imperial conference approved a committee report that stated:
"[A]part from provisions embodied in constitutions or in specific statutes expressly providing for reservation, it is recognised that it is the right of the Government of each Dominion to advise the Crown in all matters relating to its own affairs. Consequently, it would not be in accordance with constitutional practice for advice to be tendered to His Majesty by His Majesty's Government in Great Britain in any matter appertaining to the affairs of a Dominion against the views of the Government of that Dominion."
The Report of the Conference on the Operation of Dominion Legislation and Merchant Shipping Legislation, 1929 (Cmd 3479), which was approved by the 1930 imperial conference, stated that both the prerogative and statutory powers of disallowance had "not been exercised for many years" in relation to dominion
Dominion
A dominion, often Dominion, refers to one of a group of autonomous polities that were nominally under British sovereignty, constituting the British Empire and British Commonwealth, beginning in the latter part of the 19th century. They have included Canada, Australia, New Zealand, Newfoundland,...
legislation (para. 19), and more specifically:
"In fact the power of disallowance has not been exercised in relation to Canadian legislation since 1873 or to New Zealand legislation since 1867; it has never been exercised in relation to legislation passed by the Parliaments of the Commonwealth of Australia or the Union of South Africa." (para. 22)
Together with the change from the appointment of Governors-General being made on the formal advice of the British government to being made on the advice of the relevant dominion government, the effect of these two conferences was to put an end to the use of both reservation and disallowance as meaningful powers.
In Canada
In Canadian constitutional law, the powers of reservation and disallowance of both federal and provincial legislation still formally remain in place. However, the powers in relation to federal legislation have been effectively obsolete since the nineteenth century. The powers in relation to provincial legislation, which were vested in the Governor General of CanadaGovernor General of Canada
The Governor General of Canada is the federal viceregal representative of the Canadian monarch, Queen Elizabeth II...
rather than in the Sovereign, remained in use for much longer; the last disallowance of a provincial law occurred in April 1943, in relation to Alberta
Alberta
Alberta is a province of Canada. It had an estimated population of 3.7 million in 2010 making it the most populous of Canada's three prairie provinces...
's "An Act to Prohibit the Sale of Lands to any Enemy Aliens and Hutterite
Hutterite
Hutterites are a communal branch of Anabaptists who, like the Amish and Mennonites, trace their roots to the Radical Reformation of the 16th century. Since the death of their founder Jakob Hutter in 1536, the beliefs of the Hutterites, especially living in a community of goods and absolute...
s for the Duration of the War", while the last reservation of a provincial law occurred in 1961.
Early in Confederation these powers were exercised relatively frequently, but soon fell into disuse. Currently, some believe that by constitutional convention, they are regarded as spent power
Lapsed power
In politics and government, lapsed power is a term often used to describe a certain constitutionally-granted power of government that is no longer used, according to constitutional convention...
s even though they have never been formally abolished. However, the ability of the Governor General of Canada
Governor General of Canada
The Governor General of Canada is the federal viceregal representative of the Canadian monarch, Queen Elizabeth II...
to disallow legislation has never been tested since it was last used in 1943. An attempt was made in 1971 to remove both powers from the Constitution
Constitution of Canada
The Constitution of Canada is the supreme law in Canada; the country's constitution is an amalgamation of codified acts and uncodified traditions and conventions. It outlines Canada's system of government, as well as the civil rights of all Canadian citizens and those in Canada...
with the Victoria Charter
Victoria Charter
The Victoria Charter was a set of proposed amendments to the Constitution of Canada in 1971. This document represented a failed attempt on the part of Prime Minister Pierre Trudeau to patriate the Constitution, add rights and freedoms to it and entrench English and French as Canada's official...
, but this failed. The First Ministers decided not to include abolition in the Constitution Act, 1982
Constitution Act, 1982
The Constitution Act, 1982 is a part of the Constitution of Canada. The Act was introduced as part of Canada's process of "patriating" the constitution, introducing several amendments to the British North America Act, 1867, and changing the latter's name in Canada to the Constitution Act, 1867...
.
Reservation
The power of reservation is held by the Lieutenant GovernorLieutenant Governor (Canada)
In Canada, a lieutenant governor is the viceregal representative in a provincial jurisdiction of the Canadian monarch and head of state, Queen Elizabeth II, who resides predominantly in her oldest realm, the United Kingdom...
of a province, deferring the power of assent to the Governor General (i.e. for the consideration of the federal government).
The reservation by a provincial Lieutenant Governor was in 1961, in Saskatchewan
Saskatchewan
Saskatchewan is a prairie province in Canada, which has an area of . Saskatchewan is bordered on the west by Alberta, on the north by the Northwest Territories, on the east by Manitoba, and on the south by the U.S. states of Montana and North Dakota....
. Lieutenant Governors have used their power of reservation a total of 112 times, with the largest number being in the province of Manitoba
Manitoba
Manitoba is a Canadian prairie province with an area of . The province has over 110,000 lakes and has a largely continental climate because of its flat topography. Agriculture, mostly concentrated in the fertile southern and western parts of the province, is vital to the province's economy; other...
(21 times).
Disallowance
Prime Minister Macdonald regularly advised the use of the power of disallowance against provincial legislation. By 1911 the practice of disallowing provincial bills had become very infrequent; however, it was used in the 1930s by Ernest LapointeErnest Lapointe
Ernest Lapointe, PC was a Canadian lawyer and politician.-Education, early career:Lapointe earned his law degree from Laval University...
to strike down various laws of Alberta
Alberta
Alberta is a province of Canada. It had an estimated population of 3.7 million in 2010 making it the most populous of Canada's three prairie provinces...
's Social Credit government. Since 1911, disallowance has been used only 17 times.
See also
- Canadian federalismCanadian federalismCanada is a federation with two distinct jurisdictions of political authority: the country-wide federal government and the ten regionally-based provincial governments. It also has three territorial governments in the far north, though these are subject to the federal government...
- Manitoba Schools QuestionManitoba Schools QuestionThe Manitoba Schools Question was a political crisis in the Canadian Province of Manitoba that occurred late in the 19th century, involving publicly funded separate schools for Roman Catholics and Protestants...
- Declaratory powerDeclaratory power-Canada:In Canadian law, the "declaratory power" is linked to the Works and Undertakings clause of the constitution, and allows Parliament to declare that public works in one province are for the "general advantage of Canada" or "for two or more of the Provinces" rather than just for the advantage...
- New Zealand Constitution Act 1852#Effect