Lapsed power

Last updated

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. This may be because the power's original conditions of use no longer exist, making it an anachronism, or simply because the nation's political culture and attitudes have shifted, making the power appear too morally or ethically objectionable to use. However, the power still exists.

Examples of lapsed powers include the reserve powers of a monarch under a constitutional monarchy. Constitutional monarchs have significant powers over matters such as the appointment of the prime minister or the veto of legislation, but in practice these powers are rarely actually used independently.

Comparative public law scholar Richard Albert has theorized a related phenomenon he calls "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." [1]

See also

Related Research Articles

<span class="mw-page-title-main">Constitutional monarchy</span> Form of government

A constitutional monarchy, parliamentary monarchy, or democratic monarchy is a form of monarchy in which the monarch exercises their authority in accordance with a constitution and is not alone in making decisions. Constitutional monarchies differ from absolute monarchies in that they are bound to exercise powers and authorities within limits prescribed by an established legal framework.

A head of state is the public persona who officially embodies a state in its unity and legitimacy. Depending on the country's form of government and separation of powers, the head of state may be a ceremonial figurehead or concurrently the head of government and more.

A monarchy is a form of government in which a person, the monarch, is head of state for life or until abdication. The political legitimacy and authority of the monarch may vary from restricted and largely symbolic, to fully autocratic, and can span across executive, legislative, and judicial domains.

<span class="mw-page-title-main">Prime Minister of the United Kingdom</span> Head of government in the United Kingdom

The prime minister of the United Kingdom is the head of government of the United Kingdom. The prime minister advises the sovereign on the exercise of much of the royal prerogative, chairs the Cabinet and selects its ministers. As modern prime ministers hold office by virtue of their ability to command the confidence of the House of Commons, they sit as members of Parliament.

Separation of powers refers to the division of a state's government into "branches", each with separate, independent powers and responsibilities, so that the powers of one branch are not in conflict with those of the other branches. The typical division into three branches of government, sometimes called the trias politica model, includes a legislature, an executive, and a judiciary. It can be contrasted with the fusion of powers in parliamentary and semi-presidential systems where there can be overlap in membership and functions between different branches, especially the executive and legislative. In most non-authoritarian jurisdictions, however, the judiciary almost never overlaps with the other branches, whether powers in the jurisdiction are separated or fused.

<span class="mw-page-title-main">Westminster system</span> Parliamentary system of government

The Westminster system or Westminster model is a type of parliamentary government that incorporates a series of procedures for operating a legislature. This concept was first developed in England.

<span class="mw-page-title-main">Legislature</span> Deliberative assembly that makes laws

A legislature is an assembly with the authority to make laws for a political entity such as a country or city. They are often contrasted with the executive and judicial powers of government.

<span class="mw-page-title-main">Veto</span> Legal power to stop an official action, usually enactment of legislation

A veto is a legal power to unilaterally stop an official action. In the most typical case, a president or monarch vetoes a bill to stop it from becoming law. In many countries, veto powers are established in the country's constitution. Veto powers are also found at other levels of government, such as in state, provincial or local government, and in international bodies.

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.

A constitutional convention is an informal and uncodified tradition that is followed by the institutions of a state. In some states, notably those Commonwealth of Nations states that follow the Westminster system and whose political systems derive from British constitutional law, most government functions are guided by constitutional convention rather than by a formal written constitution. In these states, actual distribution of power may be markedly different from those the formal constitutional documents describe. In particular, the formal constitution often confers wide discretionary powers on the head of state that, in practice, are used only on the advice of the head of government, and in some cases not at all.

<span class="mw-page-title-main">Constitution of Denmark</span> Fundamental law of Denmark and its territories (Greenland and the Faroe Islands)

The Constitutional Act of the Realm of Denmark, also known as the Constitutional Act of the Kingdom of Denmark, or simply the Constitution, is the constitution of the Kingdom of Denmark, applying equally in the Realm of Denmark: Denmark proper, Greenland and the Faroe Islands. The first democratic constitution was adopted in 1849, replacing the 1665 absolutist constitution. The current constitution is from 1953. It is one of the oldest constitutions in the world. The Constitutional Act has been changed a few times. The wording is general enough to still apply today.

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.

Fusion of powers is a feature of some parliamentary forms of government where different branches of government are intermingled, typically the executive and legislative branches. It is contrasted with the separation of powers found in presidential, semi-presidential and dualistic parliamentary forms of government, where the membership of the legislative and executive powers cannot overlap. Fusion of powers exists in many, if not a majority of, parliamentary democracies, and does so by design. However, in all modern democratic polities the judiciary does not possess legislative or executive powers.

<span class="mw-page-title-main">New Zealand Government</span> Central government of New Zealand

The New Zealand Government is the central government through which political authority is exercised in New Zealand. As in most other parliamentary democracies, the term "Government" refers chiefly to the executive branch, and more specifically to the collective ministry directing the executive. Based on the principle of responsible government, it operates within the framework that "the [King] reigns, but the government rules, so long as it has the support of the House of Representatives". The Cabinet Manual describes the main laws, rules and conventions affecting the conduct and operation of the Government.

<i>Council of Civil Service Unions v Minister for the Civil Service</i> United Kingdom constitutional law

Council of Civil Service Unions v Minister for the Civil Service[1984] UKHL 9, or the GCHQ case, is a United Kingdom constitutional law and UK labour law case that held the royal prerogative was subject to judicial review.

<span class="mw-page-title-main">Royal prerogative in the United Kingdom</span> Privileges and immunities of the British monarch

The royal prerogative is a body of customary authority, privilege, and immunity attached to the British monarch, recognised in the United Kingdom. The monarch is regarded internally as the absolute authority, or "sole prerogative", and the source of many of the executive powers of the British government.

<span class="mw-page-title-main">Constitution of the United Kingdom</span> Principles, institutions and law of political governance in the United Kingdom

The constitution of the United Kingdom or British constitution comprises the written and unwritten arrangements that establish the United Kingdom of Great Britain and Northern Ireland as a political body. Unlike in most countries, no attempt has been made to codify such arrangements into a single document, thus it is known as an uncodified constitution. This enables the constitution to be easily changed as no provisions are formally entrenched; the Supreme Court of the United Kingdom recognises that there are constitutional principles, including parliamentary sovereignty, the rule of law, democracy, and upholding international law.

<span class="mw-page-title-main">Government of the United Kingdom</span> Executive authority of the United Kingdom

His Majesty's Government is the central executive authority of the United Kingdom of Great Britain and Northern Ireland. The government is led by the prime minister who selects all the other ministers. The country has had a Conservative-led government since 2010, with successive prime ministers being the then leader of the Conservative Party. The prime minister and their most senior ministers belong to the supreme decision-making committee, known as the Cabinet.

The royal prerogative is a body of customary authority, privilege, and immunity recognized in common law and, sometimes, in civil law jurisdictions possessing a monarchy as belonging to the sovereign and which have become widely vested in the government. It is the means by which some of the executive powers of government, possessed by and vested in a monarch with regard to the process of governance of the state, are carried out.

The rule of law is one of the longest established common law fundamental principles of the governance of the United Kingdom, dating to Magna Carta of 1215, particularly jurisprudence following its late 13th century re-drafting. It as a minimum subjects an otherwise absolute monarch (executive) and all free people within its jurisdictions, primarily those of England and Wales, Scotland and Northern Ireland to legal doctrines known as the general principles of law. It has evolved to work only alongside equal application of the law to all free people 'equality before the law' and within the framework of the constitutional monarchy supports the legal doctrine of parliamentary sovereignty. Exactly what it entails beyond this and the way that different aspects of the rule of law principle are applied, depends on the specific situation and era.

References

  1. Albert, Richard (March 2014). "Richard Albert, "Constitutional Amendment by Constitutional Desuetude," American Journal of Comparative Law, Vol. 62, 2014". SSRN   2461509.{{cite web}}: Missing or empty |url= (help)