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Reserve power
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In a parliamentary or semi-presidential system of government, a reserve power is a power that may be exercised by the head of state without the approval of another branch of the government. Unlike a presidential system of government, the head of state is generally constrained by the cabinet or the legislature, and most reserve powers are usable only in certain exceptional circumstances. The reserve powers of the President of Ireland are called discretionary powers.
s of state in countries with either an uncodified and partly unwritten constitution (such as the United Kingdom) or a wholly written constitution that consists of a text augmented by additional conventions, traditions, Letters Patent, etc.
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In a parliamentary or semi-presidential system of government, a reserve power is a power that may be exercised by the head of state without the approval of another branch of the government. Unlike a presidential system of government, the head of state is generally constrained by the cabinet or the legislature, and most reserve powers are usable only in certain exceptional circumstances. The reserve powers of the President of Ireland are called discretionary powers.
Constitutional monarchies
Heads of state in countries with either an uncodified and partly unwritten constitution (such as the United Kingdom) or a wholly written constitution that consists of a text augmented by additional conventions, traditions, Letters Patent, etc. (such as the Commonwealth of Australia) generally have reserve powers.
Typically these powers are:
- to dismiss a Prime Minister;
- to refuse to dissolve Parliament;
- to refuse or delay the Royal Assent to legislation. To withhold the Royal Assent amounts to a veto of a Bill. To reserve the Royal Assent in effect amounts to a decision neither to grant or refuse assent, but to delay taking a decision for an undetermined period of time. In Australia, Royal Assent can also be reserved by the Governor-General in order for the Queen to sign a Bill into law - this is 'reserving the Bill for Her Majesty's pleasure'.
There are usually strict constitutional conventions concerning when these powers may be used, and these conventions are enforced by public pressure. Using these powers in contravention of tradition would generally provoke a constitutional crisis.
Some political scientists believe that reserve powers are a good thing in that they allow for a government to handle an unforeseen crisis and that the use of convention to limit the use of reserve powers allows for more gradual and subtle constitutional evolution than is possible through formal amendment of a written constitution. Others believe that reserve powers are vestigial and potentially dangerous parts of a constitution.
Reserve powers often originate in situations in which the head of state begins with vast discretionary powers which over time become more difficult to execute in practice without provoking a constitutional crisis. As a society becomes more democratic, conventions and limitations on the power of the head of state become increasingly established and constitutional evolution occurs by establishing conventions rather than by formal amendment of the constitution. As a result, reserve powers often exist in the context of constitutional monarchies.
The Commonwealth of Nations
Within the Commonwealth realms (or dominions) until the 1920s, most reserve powers were exercised by a governor-general, on the advice of the British government, normally in the form of written instructions issued to him or her when they took office. After a 1926 Imperial Conference decision, however, the governors-general were no longer advised by the British government, but rather, by that of each individual state.
For example, the first Governor-General of the Irish Free State, Tim Healy was instructed by the British Dominions Office in 1922 to withhold the Royal Assent on any Bill passed by the two houses of Oireachtas Éireann (the Irish parliament) that attempted to change or abolish the Oath of Allegiance. However no such Bill was introduced during Healy's period in office (1922-28). By the time the Oath was abolished, some years later, the Irish Governor-General was formally advised exclusively by the Irish government.
United Kingdom
In the UK, the Monarch has numerous theoretical personal prerogatives. In practice however, with the exception of the appointment of a prime minister there are few circumstances in modern British government where these could be justifiably exercised; they have rarely been exercised in the last century. The monarch's personal prerogatives are:
- To refuse to dissolve Parliament when requested by the Prime Minister. This was last reputedly considered in 1910, but George V later changed his mind. See Lascelles Principles.
- To appoint a Prime Minister of her [his] own choosing. This was last done in Britain in 1963 when Elizabeth II appointed Sir Alec Douglas-Home as Prime Minister, on the advice of outgoing Harold Macmillan.
- To dismiss of a Prime Minister and his or her Government on the Monarch's own authority. This was last done in Britain in 1834 by King William IV.
- To refuse the Royal Assent, last exercised in 1708 by Queen Anne when she withheld Royal Assent from the Scottish Militia Bill 1708.
- To refuse the "Queen's [King's] Consent", where direct monarchical assent is required for a bill affecting, directly or by implication, the prerogative, hereditary revenues—including ultimus haeres, treasure trove, and bona vacantia—or the personal property or interests of the Crown to be heard in Parliament. In 1999, Queen Elizabeth II, acting on the advice of the government, refused to signify her consent to the Military Action Against Iraq (Parliamentary Approval) Bill, which sought to transfer from the monarch to Parliament the power to authorize military strikes against Iraq.
These powers could be exercised in an emergency such as a constitutional crisis (such as surrounded the People's Budget of 1909), or in wartime. They would also be very relevant during a hung parliament.
For example, in the most recent hung parliament in 1974, the serving Prime Minister Edward Heath attempted to remain in power but was unable to form a working majority. The Queen then asked Harold Wilson, leader of the Labour Party, which had the largest number of seats in the Commons but not an overall majority, to attempt to form a government. Subsequently Wilson asked that if the government were defeated on the floor of the House of Commons, the Queen would grant a dissolution, which she agreed to.
Australia
The Queen's personal prerogatives can be quite distinct from those of her governors-general, who are exercising her functions and powers on her behalf in a particular Commonwealth realm. The powers of the Governor-General almost invariably derive from a written constitution, so it is not correct to speak of a Governor-General exercising the Royal prerogative.
In 1953, prior to Queen Elizabeth II's first royal visit (also the first visit to Australia by its reigning monarch), it was planned for her to take part in various formal processes of her Australian government. However, the government's legal advisors discovered that the Constitution of Australia vested all of the Queen's statutory powers in the office of her Governor-General, with the exception of the power to appoint the Governor-General him or herself. The Royal Powers Act 1953 was passed in order to address this anomaly, and enabled the Queen, when she was personally present in Australia, to exercise any power defined in an Act of the Australian parliament that is exercisable by her Governor-General.
While the reserve power to dismiss a government has not been used in the United Kingdom since 1834, this power has been exercised more recently in Australia, on two occasions:
- On 13 May 1932, when Governor Sir Philip Game dismissed the Government of New South Wales.
- On 11 November 1975, when the Australian Governor-General Sir John Kerr dismissed the Commonwealth Government.
In both cases an election was held very soon afterwards and, again in both cases, the dismissed government was massively defeated by popular vote.
These are amongst several exercises of the reserve powers in Australia in the 20th century at state and federal levels.
Canada
The reserve powers of the Governor General of Canada to dismiss a prime minister have never actually been used, although other reserve powers have been used to force the PM to resign on two occasions. The first took place in 1896, when Prime Minister Charles Tupper refused to resign after losing the 1896 election, and Governor General The Earl of Aberdeen refused to sign several appointments Tupper had made. On the second occasion, which is most commonly known as the King-Byng Affair of 1926, Lord Byng of Vimy refused to dissolve the new parliament after William Lyon Mackenzie King had advised him to.
No modern Governor General has disallowed a bill, although provincial Lieutenant Governors have. A Lieutenant Governor may, instead of granting the Royal Assent to a bill, reserve the bill for the Governor General. This practice was last invoked by Frank Lindsay Bastedo, the Lieutenant Governor of Saskatchewan, in 1961. Withholding Royal Assent was notably exercised by Alberta's Lieutenant Governor, John C. Bowen, in 1937, in respect of three bills passed under William Aberhart's Social Credit Government. Two bills sought to put banks under the authority of the province, thereby interfering with the federal government's powers. The third, the Accurate News and Information Bill, purported to force newspapers to print government rebuttals to stories to which the provincial cabinet objected. The unconstitutionality of all three bills was later confirmed by the Supreme Court of Canada and by the Privy Council.
Belgium
In Belgium a constitutional provision explicitly states that no act of the Monarch is valid without the signature of (a) member(s) of the government, which thereby becomes solely responsible, hence excluding any reserve power for the crown. In legal terminology, a competence vested in 'the King' thus very often means the government, as opposed to formal laws which require a (sometimes qualified) parliamentary majority.
Constitutional precedence has even established the unwritten but binding rule that the Monarch must give assent to any parliamentary decision, regardless of any other considerations (which can only be advanced in private audience with government members, not imposed), as soon as the government presents it for royal signature and thus assumes full political responsibility.
In 1990, when a law liberalizing Belgium's abortion laws was approved by parliament, King Baudouin refused to give his Royal Assent, only the second time in Belgium's history the monarch elected to do so. Instead, he requested that the cabinet declare him unable to reign for a day, which it did, thereby assuming the king's constitutional powers. All members of the government then signed the bill, passing it into law. The government declared that Baudouin was capable of reigning again the next day.
Japan
Unlike other constitutional monarchs, the Emperor of Japan has no reserve powers. Following Japan's defeat in World War II, the emperor's role is defined in Chapter I of the 1947 Constitution of Japan, as decided by the foreign powers that had defeated Japan in the war. It states that the sovereignty of Japan rests with the people, not the emperor, and that the emperor is merely the symbol of the State and of the unity of the people.
Spain
The Spanish Constitution of 1978 explicitly says the king is not subject to any responsibility but his acts to be valid must be endorsed by the Government and will not be valid without such an endorsement. The only exception is that the king is free to appoint and remove the members of his private and military advisors (Casa Real).
Republics
Reserve powers can also be written into a republican constitution that separates the offices of Head of State and Head of Government. This was the case in Germany under the Weimar Republic, and is still the case in the French Fifth Republic and the Italian republic. Reserve powers may include, for instance, the right to issue emergency legislation or regulation bypassing the normal processes. In most states, the head of state's ability to exercise reserve powers is explicitly defined and regulated by the text of the constitution.
France
Article 16 of the Constitution of France allows the President of the Republic to exercise exceptional powers in case of a national emergency. During this time, the President may not use his prerogative to dissolve the National Assembly and call early elections. He must still consult the Prime Minister, the leaders of both houses of Parliament and the Constitutional Council.
The inspiration for this disposition in the Constitution was the institutional chaos and lack of government authority which contributed to the French debacle in the Battle of France in 1940. On a larger scale, this is consistent with a tradition of the Roman Republic (which has always been an inspiration for the successive French Republics), to give six months of dictatorial power to a citizen in case of an imminent danger of invasion.
Article 16 rule has only been exercised once, in 1961, during a crisis related to the Algerian War in which Charles de Gaulle needed those emergency powers to foil a military plot to take over the government. In 1962, the Council of State ruled itself incompetent to judge measures of a legislative nature issued by the President under Article 16.
In his book, Le Coup d'État permanent (The Permanent Coup), François Mitterrand criticized Article 16 for allowing an ambitious politician the opportunity to become a dictator. However, he made no move to put away his reserve powers after he himself became President.
Germany
The Basic Law (i.e. the German constitution) of the Federal Republic of Germany strictly limits the reserve powers available to the President to prevent the situation in which the executive could effectively rule without legislative approval, which was the case in the Weimar Republic. In particular, he cannot rule by decree and he can only dissolve the Bundestag (parliament) if the Chancellor loses a motion of confidence and asks the President to do so.
The German President has exercised this right three times since the founding of the Federal Republic in 1949. President Gustav Heinemann dissolved the Bundestag at the request of Chancellor Willy Brandt in 1972, and in 1982 President Karl Carstens did so at the request of Chancellor Helmut Kohl. Both Brandt and Kohl were reelected with larger majorities. Most recently, on 1 July 2005, President Horst Köhler dissolved the Bundestag at the request of Chancellor Gerhard Schröder. Schröder expectedly lost the election that followed and thus made way for a new government.
The wide use of sweeping reserve powers by Adolf Hitler, contained in Article 48 of the Weimar Constitution, has often been cited as an important factor in the failure of the Weimar Republic and the decisive attainment of totalitarian power by Nazism in Germany in the 1930s.
The German President has the right to refuse his signature to laws passed by the parliament in certain circumstances. These may be formal errors in the law-making process or violations of the Basic Law inherent to the new law. This reserve power has been used 8 times till the end of 2008. see the German Wikipedia entry
There are some further reserve powers in very narrow defined special circumstances. This includes the right to nominate on his own the first candidate for Chancellor put to vote in the Bundestag. This power has never been used as the President always nominated the candidate of the winning party.
The German President has the right to pardon criminals for federal crimes (i.e Terrorists) with the countersignature of a member of the cabinet. The refusal of a pardon does not need a countersignature.
Italy
The President of the Italian Republic's powers are defined by articles 87 through 90 of the Constitution of Italy. The President:
- can send official messages to the chambers of the Italian Parliament;
- appoints the prime minister;
- may appoint up to five senators for life;
- appoints a third of the judges of the Constitutional Court;
- can grant pardons and reduce sentences;
- can call for new elections for both or only one of the chambers, except during the last six months of his term.
The president can refuse to sign laws he deems clearly against the Constitution, while less obvious cases are dealt later on by the constitutional court. If the rejected law is passed again by a majority in the parliament, however, the president must sign it.
See also
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