Disallowance and reservation
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.
In 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, 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:
"[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 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.
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. 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, to avoid giving the Australian federal government 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 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 (where reservation and disallowance involved the British government) have been effectively obsolete since the nineteenth century. One notable occasion of a Governor General formally reserving federal legislation in the twentieth century was in 1939 when Lord Tweedsmuir reserved nine federal bills on the advice of Prime Minister Mackenzie King, but in that instance the purpose was merely to give King George VI the opportunity to grant assent to the bills in person during the 1939 royal tour of Canada.
The powers in relation to provincial legislation, which were vested in the Governor General of Canada (and thus, effectively, the Canadian federal government) 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 Hutterites 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 powers 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.
The power of reservation is held by the Lieutenant Governor of a province, deferring the power of assent to the Governor General (i.e. for the consideration of the federal government).
The last 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).
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 Federal Justice Minister Ernest Lapointe to strike down various laws of Alberta's Social Credit government. Since 1911, disallowance has been used only 17 times.
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.
- Canadian federalism
- Manitoba Schools Question
- Declaratory power
- New Zealand Constitution Act 1852#Effect
- Imperial Conference, 1926: Summary of Proceedings, HMSO, London, 1926 (Cmd 2768), p. 17
- Imperial Conference, 1930: Summary of Proceedings, HMSO, London, 1930 (Cmd 3717), p. 18
- Constitutional Law of Canada, P W Hogg, (4th Edition, 1997), p. 120.
- La Forest, "Disallowance and Reservation of Provincial Legislation" (Ottawa: Department of Justice, 1955).