Disallowance and reservation

Disallowance and reservation are constitutional powers that theoretically exist in certain Commonwealth realms 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.

General principles

In Commonwealth 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:

"[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.

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 Canada 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.^[3] 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.

Reservation

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 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).^{[citation needed]}

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 Lapointe to strike down various laws of Alberta's Social Credit government. Since 1911, disallowance has been used only 17 times.^{[citation needed]}

See also

• Canadian federalism
• Manitoba Schools Question
• Declaratory power
• New Zealand Constitution Act 1852#Effect

Notes

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. ^ Constitutional Law of Canada, P W Hogg, (4th Edition, 1997), p. 120.

References

• La Forest, "Disallowance and Reservation of Provincial Legislation" (Ottawa: Department of Justice, 1955).