Disallowance And Reservation
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Disallowance and reservation are historical constitutional powers that were instituted in several territories throughout the
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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.


General principles

In
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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 Bill(s) may refer to: Common meanings * Banknote, paper cash (especially in the United States) * Bill (law), a proposed law put before a legislature * Invoice, commercial document issued by a seller to a buyer * Bill, a bird or animal's beak Plac ...
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 A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of entity and commonly determine how that entity is to be governed. When these princ ...
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
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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 The Colonial Laws Validity Act 1865 (28 & 29 Vict. c. 63) 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". The purpose of the Act was to remove any apparent inco ...
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 Imperial Conferences (Colonial Conferences before 1907) were periodic gatherings of government leaders from the self-governing colonies and dominions of the British Empire between 1887 and 1937, before the establishment of regular Meetings of ...
approved a committee report that stated:
art 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 The term ''Dominion'' is used to refer to one of several self-governing nations of the British Empire. "Dominion status" was first accorded to Canada, Australia, New Zealand, Newfoundland, South Africa, and the Irish Free State at the 192 ...
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 The Australia Act 1986 is the short title of each of a pair of separate but related pieces of legislation: one an Act of the Commonwealth (i.e. federal) Parliament of Australia, the other an Act of the Parliament of the United Kingdom. In ...
.


In Canada

In
Canadian constitutional law Canadian constitutional law () is the area of Canadian law relating to the interpretation and application of the Constitution of Canada by the courts. All laws of Canada, both provincial and federal, must conform to the Constitution and any laws i ...
, the powers of reservation and disallowance of federal legislation still formally remain in place in Sections 55 and 56 of the ''
Constitution Act, 1867 The ''Constitution Act, 1867'' (french: Loi constitutionnelle de 1867),''The Constitution Act, 1867'', 30 & 31 Victoria (U.K.), c. 3, http://canlii.ca/t/ldsw retrieved on 2019-03-14. originally enacted as the ''British North America Act, 186 ...
''. These are extended to provincial legislation by Section 90. In initial intent, and in practice for the first few years of
Confederation A confederation (also known as a confederacy or league) is a union of sovereign groups or states united for purposes of common action. Usually created by a treaty, confederations of states tend to be established for dealing with critical issu ...
, disallowance was considered a means of ensuring constitutional compliance. For federal bills, reservation was done on the instructions of the United Kingdom until 1878. At the
1930 Imperial Conference The 1930 Imperial Conference was the sixth Imperial Conference bringing together the prime ministers of the dominions of the British Empire. It was held in London. The conference was notable for producing the Statute of Westminster, which establi ...
, it was agreed that the United Kingdom would not reserve or disallow legislation without the approval of the Canadian cabinet. Between 1867 and 1878, twenty-one federal bills were reserved, six of which were denied Royal Assent.''Constitutional Law of Canada'', P W Hogg, (Student Edition, 2008), p. 52 (3.1) (Note 5). The only disallowed federal bill was the ''Oaths Act'' in 1873, which sought to enable Parliament to call witnesses for examination regarding the
Pacific Scandal The Pacific Scandal was a political scandal in Canada involving bribes being accepted by 150 members of the Conservative government in the attempts of private interests to influence the bidding for a national rail contract. As part of British Colu ...
; the bill was deemed to be outside the power of the Federal parliament as envisioned in the British North America Act. 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 The governor general of Canada (french: gouverneure générale du Canada) is the federal viceregal representative of the . The is head of state of Canada and the 14 other Commonwealth realms, but resides in oldest and most populous realm, ...
for the Queen-in-Council and the lieutenant governor for the governor general.
Prime Minister A prime minister, premier or chief of cabinet is the head of the cabinet and the leader of the ministers in the executive branch of government, often in a parliamentary or semi-presidential system. Under those systems, a prime minister i ...
John A. Macdonald Sir John Alexander Macdonald (January 10 or 11, 1815 – June 6, 1891) was the first prime minister of Canada, serving from 1867 to 1873 and from 1878 to 1891. The dominant figure of Canadian Confederation, he had a political career that sp ...
and his
Conservative Conservatism is a cultural, social, and political philosophy that seeks to promote and to preserve traditional institutions, practices, and values. The central tenets of conservatism may vary in relation to the culture and civilization in ...
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 The powers and structure of the provincial Government of Manitoba (french: Gouvernement du Manitoba) are set out in the Constitution Act, 1867. In modern Canadian use, the term "government" referred broadly to the cabinet of the day (formally ...
. The election of the Liberals under
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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 Sir Oliver Mowat (July 22, 1820 – April 19, 1903) was a Canadian lawyer, politician, and Ontario Liberal Party leader. He served for nearly 24 years as the third premier of Ontario. He was the eighth lieutenant governor of Ontario and one of ...
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 Ernest Lapointe (October 6, 1876 – November 26, 1941) was a Canadian lawyer and politician. A member of Parliament from Quebec City, he was a senior minister in the government of Prime Minister W. L. Mackenzie King, playing an importa ...
in the 1930s and 1940s to strike down various laws of Alberta's Social Credit government, 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
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and "enemy aliens." The last reservation of a provincial law occurred in 1961, when Saskatchewan Lieutenant Governor
Frank Lindsay Bastedo Frank Lindsay Bastedo (September 10, 1886 – February 15, 1973), was a Canadian lawyer who served as the 11th Lieutenant Governor of Saskatchewan. He is notable for being one of the few (and the last) Canadian vice-regal representatives to refu ...
, without the instruction or knowledge of the federal government, reserved a CCF government's bill regarding mining contracts.Bastedo, Frank Lindsay
Encyclopedia of Saskatchewan
The
Diefenbaker John George Diefenbaker ( ; September 18, 1895 – August 16, 1979) was the 13th prime minister of Canada, serving from 1957 to 1963. He was the only Progressive Conservative party leader between 1930 and 1979 to lead the party to an electio ...
Cabinet quickly passed an
order-in-council An Order-in-Council is a type of legislation in many countries, especially the Commonwealth realms. In the United Kingdom this legislation is formally made in the name of the monarch by and with the advice and consent of the Privy Council (''Kin ...
to grant
royal assent Royal assent is the method by which a monarch formally approves an act of the legislature, either directly or through an official acting on the monarch's behalf. In some jurisdictions, royal assent is equivalent to promulgation, while in oth ...
. Both powers, while still operative, are generally considered dormant, prompting some debates about whether they have effectively become obsolete through disuse. 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." Removal of both powers from the
constitution A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of entity and commonly determine how that entity is to be governed. When these princ ...
was contemplated in the failed
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 a bill of rights to it and entr ...
. The first ministers decided not to include abolition in the
Constitution Act, 1982 The ''Constitution Act, 1982'' (french: link=no, Loi constitutionnelle de 1982) is a part of the Constitution of Canada.Formally enacted as Schedule B of the ''Canada Act 1982'', enacted by the Parliament of the United Kingdom. Section 60 of t ...
, and attempts to revise the powers included in the
Charlottetown Accord The Charlottetown Accord (french: Accord de Charlottetown) was a package of proposed amendments to the Constitution of Canada, proposed by the Canadian federal and provincial governments in 1992. It was submitted to a public referendum on October ...
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 The ''Charter of the French Language'' (french: link=no, La charte de la langue française), also known in English as Bill 101, Law 101 (''french: link=no, Loi 101''), or Quebec French Preference Law, is a law in the Provinces and territories of ...
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. In 2018, the government of
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was formally asked by
Toronto City Council Toronto City Council is the governing body of the municipal government of Toronto, Ontario. Meeting at Toronto City Hall, it comprises 25 city councillors and the mayor of Toronto. The current term began on November 15, 2022. Structure The c ...
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 The lieutenant governor of Alberta () is the viceregal representative in Alberta of the . The lieutenant governor is appointed in the same manner as the other provincial viceroys in Canada and is similarly tasked with carrying out most of the m ...
asking her to reserve royal assent on the ''Reform of Agencies, Boards and Commissions and Government Enterprises Act, 2019''. The Lieutenant Governor declined.


In New Zealand

Disallowance and reservation were powers granted to the imperial government and the
governor A governor is an administrative leader and head of a polity or political region, ranking under the head of state and in some cases, such as governors-general, as the head of state's official representative. Depending on the type of political ...
respectively in the
New Zealand Constitution Act 1852 The New Zealand Constitution Act 1852 (15 & 16 Vict. c. 72) was an Act of the Parliament of the United Kingdom that granted self-government to the Colony of New Zealand. It was the second such Act, the previous 1846 Act not having been fully ...
. 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

* legislatively-referred referendum and abrogative referendum, powers analogous to Reservation and Disallowance in a constitutional theory based on
popular sovereignty Popular sovereignty is the principle that the authority of a state and its government are created and sustained by the consent of its people, who are the source of all political power. Popular sovereignty, being a principle, does not imply any ...
, rather than sovereignty of the Crown. *
Canadian federalism Canadian federalism () involves the current nature and historical development of the federal system in Canada. Canada is a federation with eleven components: the national Government of Canada and ten provincial governments. All eleven ...
*
Manitoba Schools Question The Manitoba Schools Question () was a political crisis in the Canadian province of Manitoba that occurred late in the 19th century, attacking publicly-funded separate schools for Roman Catholics and Protestants. The crisis was precipitated by a se ...
* New Zealand Constitution Act 1852 § Effect


References


Bibliography

* * Gerard La Forest, "Disallowance and Reservation of Provincial Legislation" (Ottawa: Department of Justice, 1955). * Gerard V. La Forest
"Delegation of Legislative Power in Canada"
in
McGill Law Journal The ''McGill Law Journal'' is a student-run legal publication at McGill University Faculty of Law in Montreal. It is a not-for-profit corporation independent of the Faculty and it is managed exclusively by students. The ''Journal'' also publishes t ...
. {{Constitution of Canada, conventions Constitution of Canada Federalism in Canada British Empire Westminster system Constitution of New Zealand