Disallowance and reservation

Last updated

Disallowance and reservation are historical constitutional powers that were instituted in several territories throughout the British Empire as a mechanism to delay or overrule legislation. Originally created to preserve the Crown's authority over colonial governments, these powers are now generally considered politically obsolete, and in many cases have been formally abolished.

Contents

General principles

In British Commonwealth and colonial territories, the legislature is typically composed of one or 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". That is, the governor-general would neither assent nor refuse assent to the bill, but would instead refer 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, usually within a certain timeframe after its passage. Once notice of the disallowance was communicated to the colonial authorities, the act in question would cease to operate as law. Disallowance was not retroactive, 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, that it did not exceed a legislature's formal competence, that it did not interfere with the British government's imperial or foreign policies, and even simply that the British government did not disagree 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:

[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. [1]

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, [2] 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:

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. Later Commonwealth realms, given independence in the 1950s onwards, simply did not include reservation and disallowance in their constitutions in the first place.

In Australia

The powers of disallowance and reservation still exist at the federal level in Australia, and are described in sections 58 to 60 of the Australian Constitution. Section 58 gives the governor-general an additional power, that of returning a bill to Parliament with suggested amendments. Section 74 provided that laws containing limitations on appeal to the Privy Council had to be reserved for the queen's assent. Once the governor-general has assented to a law, the queen has one year in which to disallow it. If the governor-general reserves a bill for the queen's assent, the bill will die unless the queen approves it within two years of its passage. However, the power of disallowance has never been used in relation to Australian federal legislation, and reservation has likewise been rare to nonexistent.

There were similar arrangements in at least some Australian states, whose constitutional arrangements predated Australian federation by years or decades. Unlike in Canada (see below), disallowance of state laws, and reservation by state Governors, were matters directly for the Imperial government – the Australian federal government was never given the power to block state laws. Use of disallowance and reservation in the states declined and eventually ceased, and both powers were formally abolished by the Australia Act 1986.

In Canada

In Canadian constitutional law, the powers of reservation and disallowance of federal legislation still formally remain in place in Sections 55 and 56 of the Constitution Act, 1867 . [3] These are extended to provincial legislation by Section 90. [4] In initial intent, and in practice for the first few years of Confederation, disallowance was considered a means of ensuring constitutional compliance. [5]

For federal bills, reservation was done on the instructions of the United Kingdom until 1878. At the 1930 Imperial Conference, it was agreed that the United Kingdom would not reserve or disallow legislation without the approval of the Canadian cabinet. [6] Between 1867 and 1878, twenty-one federal bills were reserved, six of which were denied Royal Assent. [6] The only disallowed federal bill was the Oaths Act [7] in 1873, which sought to enable Parliament to call witnesses for examination regarding the Pacific Scandal; the bill was deemed to be outside the power of the Federal parliament as envisioned in the British North America Act. [8]

Reservation and disallowance are made applicable to the provincial bills in Section 90 of the Constitution Act, 1867, with the substitution of the Governor General of Canada for the Queen-in-Council and the lieutenant governor for the governor general. Prime Minister John A. Macdonald and his Conservative successors regularly advised disallowance for provincial legislation, generally citing respect for private contracts, preservation of federal jurisdiction, and the rights of local minorities as justification. Macdonald disallowed 13 railway charters issued by the fledgling provincial government of Manitoba. [9] The election of the Liberals under Wilfrid Laurier in 1896, who regarded both reservation and disallowance as unwarranted interference in provincial affairs, began to see the use of the powers subside. Provincial governments had gained democratic legitimacy and disputes regarding division of powers were decided via judicial review, leaving Liberals such as Oliver Mowat to believe the only motive for using the power was political interference. By 1911 the practice of disallowing provincial bills had become very infrequent. A notable use of disallowance in the 20th century was its use by federal Justice Minister Ernest Lapointe in the 1930s and 1940s to strike down various laws of Alberta's Social Credit government, [10] which tried to legislate in the clearly defined federal powers of banking and currency.

The last disallowance of a provincial law occurred in April 1943, in relation to Alberta legislation restricting land sales regarding Hutterites and "enemy aliens." [11] The last reservation of a provincial law occurred in 1961, when Saskatchewan Lieutenant Governor Frank Lindsay Bastedo, without the instruction or knowledge of the federal government, reserved a CCF government's bill regarding mining contracts. [12] The Diefenbaker Cabinet quickly passed an order-in-council to grant royal assent. [12]

Both powers, while still operative, are generally considered dormant, prompting some debates about whether they have effectively become obsolete through disuse. [13] Comparative public law scholar Richard Albert has argued that both powers have fallen into "constitutional desuetude," which occurs "when an entrenched constitutional provision loses its binding force upon political actors as a result of its conscious sustained nonuse and public repudiation by preceding and present political actors." [14]

Removal of both powers from the constitution was contemplated in the failed Victoria Charter. The first ministers decided not to include abolition in the Constitution Act, 1982, and attempts to revise the powers included in the Charlottetown Accord failed at referendum.

Consideration of disallowance and reservation after 1961

The government of Pierre Trudeau faced public pressure to disallow Quebec's Charter of the French Language in 1977, which forbade the use of English language signs and openly contravened some procedural linguistic rights protected by the British North America Act. Trudeau, a constitutional scholar, demurred, believing that disallowance would ultimately cause more political harm, and that it was better to have the conflicting matters adjudicated. Trudeau believed that disallowance was warranted only for laws that clearly violated federal power or that created disorder beyond the boundaries of the province enacting the law. [15]

In 2018, the government of Justin Trudeau was formally asked by Toronto City Council to disallow Ontario's pending Efficient Local Government Act (Bill 31), a bill intended to force the reduction of the number of wards represented in the Toronto City Council after the government's previous attempt to do so was ruled unconstitutional by the Superior Court of Justice. Trudeau said he did not intend to intervene in the matter. The Legislative Assembly dropped Bill 31 when the Ontario Court of Appeal overturned the initial ruling of the Superior Court.

In 2019, the Alberta Leader of the Opposition wrote an open letter to the Lieutenant Governor of Alberta asking her to reserve royal assent on the Reform of Agencies, Boards and Commissions and Government Enterprises Act, 2019. The Lieutenant Governor declined. [16]

In New Zealand

Disallowance and reservation were powers granted to the imperial government and the governor respectively in the New Zealand Constitution Act 1852. They were at first used relatively frequently, but as in other self-governing colonies the practice of overruling local legislation soon stopped. The current Constitution Act, passed in 1986 to replace the 1852 Act, makes no mention of either power.

See also

Related Research Articles

<span class="mw-page-title-main">Constitution of Canada</span>

The Constitution of Canada is the supreme law in Canada. It outlines Canada's system of government and the civil and human rights of those who are citizens of Canada and non-citizens in Canada. Its contents are an amalgamation of various codified acts, treaties between the Crown and Indigenous Peoples, uncodified traditions and conventions. Canada is one of the oldest constitutional monarchies in the world.

<span class="mw-page-title-main">Governor-General of Australia</span> Representative of the monarch of Australia

The governor-general of Australia is the representative of the monarch of Australia, currently King Charles III, and performs many constitutional, ceremonial and community roles in the Australian political system. When performing these roles, the governor-general acts independently and is not the King's delegate or agent. The current governor-general is David Hurley, having been appointed on 1 July 2019. Samantha Mostyn has been chosen by Prime Minister Anthony Albanese to be the next governor-general, beginning 1 July 2024.

<span class="mw-page-title-main">Parliament of Canada</span> Canadian federal legislature

The Parliament of Canada is the federal legislature of Canada, seated at Parliament Hill in Ottawa, and is composed of three parts: the King, the Senate, and the House of Commons. By constitutional convention, the House of Commons is dominant, with the Senate rarely opposing its will. The Senate reviews legislation from a less partisan standpoint and may initiate certain bills. The monarch or his representative, normally the governor general, provides royal assent to make bills into law.

In a parliamentary or semi-presidential system of government, a reserve power, also known as discretionary power, is a power that may be exercised by the head of state without the approval of another branch or part of the government. Unlike in a presidential system of government, the head of state is generally constrained by the cabinet or the legislature in a parliamentary system, and most reserve powers are usable only in certain exceptional circumstances.

Canadian federalism involves the current nature and historical development of the federal system in Canada.

<span class="mw-page-title-main">Canada Act 1982</span> Canadian constitutional enactment

The Canada Act 1982 is an act of the Parliament of the United Kingdom and one of the enactments which make up the Constitution of Canada. It was enacted at the request of the Senate and House of Commons of Canada to patriate Canada's constitution, ending the power of the British Parliament to amend the constitution. The act also formally ended the "request and consent" provisions of the Statute of Westminster 1931 in relation to Canada, whereby the British parliament had a general power to pass laws extending to Canada at its own request.

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, including re-naming it the Constitution Act, 1867. In addition to patriating the Constitution, the Constitution Act, 1982 enacted the Canadian Charter of Rights and Freedoms; guaranteed rights of the Aboriginal peoples of Canada; entrenched provincial jurisdiction over natural resources; provided for future constitutional conferences; and set out the procedures for amending the Constitution in the future.

Patriation is the political process that led to full Canadian sovereignty, culminating with the Constitution Act, 1982. The process was necessary because, at the time, under the Statute of Westminster, 1931, and with Canada's agreement, the British Parliament retained the power to amend Canada's British North America Acts and to enact, more generally, for Canada at the request and with the consent of the Dominion. That authority was removed from the UK by the enactment of the Canada Act, 1982, on March 29, 1982, by the Parliament of the United Kingdom, as requested by the Parliament of Canada.

<i>Constitution Act, 1867</i> Primary constitutional document of Canada

The Constitution Act, 1867, originally enacted as the British North America Act, 1867, is a major part of the Constitution of Canada. The act created a federal dominion and defines much of the operation of the Government of Canada, including its federal structure, the House of Commons, the Senate, the justice system, and the taxation system. In 1982, with the patriation of the Constitution, the British North America Acts which were originally enacted by the British Parliament, including this Act, were renamed. However, the acts are still known by their original names in records of the United Kingdom. Amendments were also made at this time: section 92A was added, giving provinces greater control over non-renewable natural resources.

In many Commonwealth jurisdictions, the phrase "peace, order, and good government" (POGG) is an expression used in law to express the legitimate objects of legislative powers conferred by statute. The phrase appears in many Imperial Acts of Parliament and Letters Patent, most notably the constitutions of Barbados, Canada, Australia and formerly New Zealand and South Africa.

A dominion was any of several largely self-governing countries of the British Empire. Progressing from colonies, their degrees of colonial self-governance increased unevenly over the late 19th century through the 1930s, and some vestiges of empire lasted in some areas into the late 20th century. With the evolution of the British Empire into the Commonwealth of Nations, finalised in 1949, the dominions became independent states, either as Commonwealth republics or Commonwealth realms.

<i>Succession to the Throne Act, 2013</i> Canadian statute changing royal succession

The Succession to the Throne Act, 2013, gave Canada's assent to the United Kingdom's 2013 changes to the rules of succession to the British throne. It was passed by the Parliament of Canada as Bill C-53, and received royal assent on 27 March 2013. The act was brought into force by the Governor-General-in-Council on 26 March 2015.

Disallowance and reservation are historical constitutional powers in Canada that act as a mechanism to delay or overrule legislation passed by Parliament or a provincial legislature. In contemporary Canadian history, disallowance is an authority granted to the governor general in council to invalidate an act passed by a provincial legislature. Reservation is an authority granted to the lieutenant governor to withhold royal assent from a bill which has been passed by a provincial legislature; the bill is then "reserved" for consideration by the federal cabinet.

Section 3 of the <i>Constitution Act, 1867</i> Provision of the Constitution of Canada

Section 3 of the Constitution Act, 1867 is a provision of the Constitution of Canada relating to the union of the original three provinces into Canada. Under the authority of this section, Queen Victoria issued the Proclamation of the Constitution Act, 1867, which brought the Act into force on July 1, 1867, creating Canada.

Section 17 of the <i>Constitution Act, 1867</i> Provision of the Constitution of Canada

Section 17 of the Constitution Act, 1867 is the provision of the Constitution of Canada which created the federal Parliament of Canada. The Parliament is composed of the King of Canada; the appointed upper house, the Senate of Canada; and the elected lower house, the House of Commons of Canada. Political power rests mainly with the elected House of Commons.

<span class="mw-page-title-main">Section 58 of the Constitution Act, 1867</span> Provision of the Constitution of Canada

Section 58 of the Constitution Act, 1867 is a provision of the Constitution of Canada creating the office of provincial lieutenant governors, and providing for appointment by the Governor General of Canada.

<span class="mw-page-title-main">Section 55 of the Constitution Act, 1867</span> Provision of the Constitution of Canada

Section 55 of the Constitution Act, 1867 is a provision of the Constitution of Canada relating to the power of the Governor General of Canada to give royal assent to a bill passed by the federal houses of Parliament. It also contains the former power of the Governor General to reserve a bill for the consideration of the British government. The provision no longer has any effect, as a result of the growth of Canadian autonomy and constitutional conventions in the 20th century.

<span class="mw-page-title-main">Section 56 of the Constitution Act, 1867</span> Provision of the Constitution of Canada

Section 56 of the Constitution Act, 1867 is a provision of the Constitution of Canada which previously set out the power of the British government to disallow laws passed by the Parliament of Canada. This power was only used once and no longer exists. The British government gave up the power as a result of the Balfour Declaration, which recognised Canada and the other British Dominions as equals of the United Kingdom.

<span class="mw-page-title-main">Section 57 of the Constitution Act, 1867</span> Provision of the Constitution of Canada

Section 57 of the Constitution Act, 1867 is a provision of the Constitution of Canada relating to the former power of the Governor General of Canada to reserve a bill passed by the two houses of the Parliament of Canada for consideration by the British government. The provision no longer has any effect, as a result of the growth of Canadian autonomy and constitutional conventions in the 20th century.

<span class="mw-page-title-main">Section 90 of the Constitution Act, 1867</span> Provision of the Constitution of Canada

Section 90 of the Constitution Act, 1867 is a provision of the Constitution of Canada relating to provincial appropriation and taxation bills, the recommendation for money votes in provincial legislative assemblies, and the federal government's power of disallowance and reservation with respect to provincial laws.

References

  1. ↑ Imperial Conference, 1926: Summary of Proceedings, HMSO, London, 1926 (Cmd 2768), p. 17
  2. ↑ Imperial Conference, 1930: Summary of Proceedings, HMSO, London, 1930 (Cmd 3717), p. 18
  3. ↑ The Constitution Act, 1867 (UK), 30 & 31 Vict., c. 3, ss. 55–56.
  4. ↑ The Constitution Act, 1867 (UK), 30 & 31 Vict., c. 3, s. 90.
  5. ↑ Macklem, Patrick; Rogerson, Carol, eds. (2017). Canadian Constitutional Law (5th ed.). Emond Publishing. p. 30. ISBN   978-1-77255-070-2.
  6. 1 2 Constitutional Law of Canada, P W Hogg, (Student Edition, 2008), p. 52 (3.1) (Note 5).
  7. ↑ Long form: An Act to provide for the examination of witnesses on Oath by Committees of the Senate and House of Commons, in certain cases, S.C. 1873, c. 1.
  8. ↑ House of Commons Procedures and Practices, Historical Perspective: "House of Commons Procedure and Practice - 3. Privileges and Immunities - Historical Perspective". Accessed 29 June 2015
  9. ↑ Creighton 1970 , p. 65
  10. ↑ Creighton 1970 , p. 229
  11. ↑ Long form: "An Act to Prohibit the Sale of Lands to any Enemy Aliens and Hutterites for the Duration of the War".
  12. 1 2 Bastedo, Frank Lindsay, Encyclopedia of Saskatchewan Archived 24 May 2013 at the Wayback Machine
  13. ↑ Constitutional Law of Canada, P W Hogg, (Student Edition, 2008), p. 52 (3.1) (Note 76).
  14. ↑ "Richard Albert, "Constitutional Amendment by Constitutional Desuetude,"". American Journal of Comparative Law. 62. 2014. SSRN   2461509.
  15. ↑ Constitutional Law of Canada, P W Hogg, (Student Edition, 2008), p. 130 (5.3(f)) (Note 75).
  16. ↑ "Alberta NDP Leader Rachel Notley thrown out of house in Bill 22 stand-off | CBC News".

Bibliography

This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.