Reserve power
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 limited circumstances.
Constitutional monarchies
In monarchies with either an uncodified or partly unwritten constitution or a wholly written constitution that consists of a text augmented by additional conventions, traditions, letters patent, etc., the monarch generally possesses reserve powers.Typically these powers are: to grant pardon; to dismiss a prime minister; to refuse to dissolve parliament; and to refuse or delay royal assent to legislation. 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.
Most constitutional monarchies employ a system that includes the principle of responsible government. In such an order, the reserve powers are thought to be the means by which the monarch and his or her viceregal representatives can legitimately exist as "constitutional guardians" or "umpires", tasked with guaranteeing that Cabinet and parliament adhere to the fundamental constitutional principles of the rule of law and responsible government itself. Some constitutional scholars, such as George Winterton, have stated that reserve powers are a good thing in that they allow for a head of state 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, such as Herbert Evatt, believe or believed that reserve powers are vestigial and potentially open to abuse. Evatt felt that the reserve powers could be codified and still serve their intended function in a responsible government system, as they do in Ireland, Japan, and Sweden.
Belgium
The Belgian constitution has an explicit provision stating no act of the monarch is valid without the signature of a member or members 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 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, as soon as the government presents it for royal signature and thus assumes full political responsibility.
In 1990, when a law liberalising Belgium's abortion laws was approved by parliament, King Baudouin refused to give his royal assent, only the second time in Belgium's history a monarch had done so. Instead, he requested cabinet to declare him unable to reign for a day, which it did and thus assumed the king's constitutional powers. All members of the government then signed the bill, passing it into law. The bicameral Belgian Federal Parliament approved a proposition that Baudouin was capable of reigning again the next day.
Commonwealth realms
Within the Dominions, until the 1920s, most reserve powers were exercised by a governor-general on the advice of either the local or the British government, though the latter took precedence. After the Balfour Declaration was produced by the 1926 Imperial Conference, formally establishing the autonomy and equal status of Commonwealth governments, governors-general ceased to be advised in any way by the British government. 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 the Oireachtas that attempted to change or abolish the Oath of Allegiance. However, no such bill was introduced during Healy's period in office. By the time the oath was abolished by the Irish Parliament in 1933, the Irish governor-general was formally advised exclusively by the Irish government.Australia
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 the Governor of New South Wales Sir Philip Game dismissed the Government of New South Wales.
- On 11 November 1975, when the Governor-General of Australia Sir John Kerr dismissed the Commonwealth Government.
In Queensland in 1987, during a tense period of leadership succession, the Governor of Queensland, Sir Walter Campbell, exercised reserve power in declining to follow the advice of the Premier, Sir Joh Bjelke-Petersen. Campbell initially refused to redistribute ministerial portfolios on the sole advice of the premier, who lacked the confidence of his cabinet. Subsequently, during a period when Queensland had a "Premier who is not leader" and the governing party had a "Leader who is not Premier", there was speculation on the potential exercise of viceregal reserve power by Campbell, in dismissing the premier in the absence of a parliamentary motion of no confidence. Ultimately, Campbell was praised for his handling of the undesirable situation.
These are among several exercises of the reserve powers in Australia in the 20th century at both state and federal levels.
Canada
The reserve powers in Canada fall within the royal prerogative and belong specifically to the monarch, as the Constitution Act, 1867, vests all executive power in the country's sovereign. King George VI in 1947 issued Letters Patent permitting the governor general "to exercise all powers and authorities lawfully belonging to Us in respect of Canada."The reserve power of dismissal has never been used in Canada, although other reserve powers have been employed to force the prime minister to resign on two occasions: The first took place in 1896, when the Prime Minister, Sir Charles Tupper, refused to step down after his party did not win a majority in the House of Commons during that year's election, leading Governor General the Earl of Aberdeen to no longer recognize Tupper as prime minister and disapprove of several appointments Tupper had recommended. On the second occasion in 1925, which came to be known as the King–Byng affair, Prime Minister William Lyon Mackenzie King, facing a non-confidence motion in the House of Commons, advised the Governor General, the Viscount Byng of Vimy, to dissolve the new parliament, but Byng refused.
At the provincial level, on 29 June 2017 Lieutenant Governor of British Columbia Judith Guichon used her reserve powers to deny the request of Premier Christy Clark to dissolve the legislature and call a new election only 51 days after the recent provincial election. Clark had advised Guichon to dissolve the legislature as, in her view, the appointment of a Speaker would have resulted in frequent tie votes and an untenable position. Guichon refused this advice and instead asked John Horgan to form a government, becoming the new premier.
No modern governor general has disallowed a bill, though provincial lieutenant governors have.
Peter Hogg, a constitutional scholar, has opined that "a system of responsible government cannot work without a formal head of state who is possessed of certain reserve powers." Further, Eugene Forsey stated "the reserve power is indeed, under our Constitution, an absolutely essential safeguard of democracy. It takes the place of the legal and judicial safeguards provided in the United States by written Constitutions, enforceable in the courts."
New Zealand
New Zealand's early governors, the predecessors of today's governors-general, exercised considerable power, with exclusive authority over some matters such as foreign and Māori affairs. They also had a real choice in selecting premiers – parliaments of the period being composed of independent members who formed loose and shifting factions – and were not always obliged to act on the advice of their ministers. As New Zealand's political system matured, the Colonial Office increasingly instructed the governors to follow the advice of local ministers, and the powers of the office have continually shrunk. Important remnants of these early powers remain. The governor-general has a number of reserve powers, which may be used on behalf of King Charles III. Sir Kenneth Keith describes the use of these powers as based on the principle that "The Queen reigns, but the government rules, so long as it has the support of the House of Representatives".The most visible reserve powers are the power to appoint a prime minister and the related power to accept a prime minister's resignation. This power is exercised every time a general election results in a change of government, most recently in 2023. It may also be exercised if a prime minister loses the confidence of Parliament and resigns instead of advising a dissolution of Parliament; the last such occasion was in 1911. Finally, it may happen if a Prime Minister is maneuvered out of their position by their own party, retires or resigns for personal reasons, or dies in office. Though the power of appointment is listed among the reserve powers, in fact the governor-general abides by strict conventions, and has always appointed the leader of the dominant faction in the House of Representatives. The governor-general retains the theoretical power to appoint as prime minister a member of the House of Representatives who clearly does not have the support of a majority of MPs, but no governor-general has sought to use this power since New Zealand gained responsible government, though some cabinets in the 19th century proved extremely short-lived. In earlier times, if a prime minister died, became incapacitated, or resigned unexpectedly, a governor-general might be able to choose a temporary prime minister from among several senior ministers, while the governing party decided on a new leader who would then be duly appointed prime minister. Today, however, the practice of appointing – on prime-ministerial advice – a permanent deputy prime minister, who becomes acting prime minister when needed, has largely removed even this discretion from the governor-general.
The governor-general has a number of other legal powers. They may dismiss an incumbent prime minister and Cabinet, an individual minister, or any other official who holds office "during the King's pleasure" or "during the Governor-General's pleasure". Conventionally, the governor-general follows the advice of the prime minister or another appropriate minister in matters of appointment and dismissal. Likewise, by convention, the Government as a whole remains in office as long as it keeps the confidence of the House.
The governor-general can also dissolve Parliament and call elections without prime-ministerial advice. Dissolving Parliament and calling for elections is part of the governor-general's normal duties; every parliamentary dissolution and subsequent general election in New Zealand's history has been called by the governor or governor-general. However, all elections since responsible government was introduced, including snap elections, have been requested by the incumbent premier or prime minister, and are accordingly not examples of use of the reserve powers. A prime minister who has lost the confidence of the House will conventionally either advise a dissolution of Parliament and new elections, or tender their resignation. If a defeated prime minister refuses to do either of these two things, the governor-general could use the reserve powers to either dismiss the prime minister, or dissolve Parliament without the prime minister's advice. Likewise, if the prime minister tenders their resignation, the governor-general could theoretically refuse to accept it, and dissolve Parliament against the Prime Minister's advice.
A governor-general can also refuse a prime minister's request to dissolve Parliament and hold elections. If a prime minister has been defeated by a vote of no confidence, a refusal by the governor-general to dissolve Parliament would, in effect, force the prime minister to resign and make way for a successor. See the Lascelles Principles for factors which might guide the governor-general in making a decision on whether or not to grant a dissolution in those circumstances. A governor-general could also legally refuse a request for a snap election from a prime minister in whom the House has confidence, but such a refusal would be extremely unlikely.
The power to withhold royal assent to Bills is controversial. Many constitutional commentators believe that the governor-general no longer has the power to refuse royal assent to any bill properly passed by the House of Representatives – former law professor and Prime Minister Sir Geoffrey Palmer and Professor Matthew Palmer argue any refusal of royal assent would lead to a constitutional crisis. Others, such as Professor Philip Joseph, believe the Governor-General does retain the power to refuse royal assent to Bills in exceptional circumstances - such as the abolition of democracy. A similar controversial power is the ability to refuse to make Orders and regulations advised by the Government or by individual Ministers.
There have been a handful of occasions when reserve powers were used, or at least considered.
In the 1890s, Premier John Ballance advised the Governor to make several new appointments to the Legislative Council. Two successive Governors, the Earl of Onslow and the Earl of Glasgow, refused to make the appointments, until the Colonial Office intervened in Ballance's favour. This incident markedly reduced the discretionary powers of the Governor. Though these remained the same in law for the time being, later Governors and governments considered that there would be far fewer scenarios in which their use would be appropriate.
Almost a century later, in 1984, there was a brief constitutional crisis. The outgoing Prime Minister, Sir Rob Muldoon, had just lost an election, but refused to advise the Governor-General, Sir David Beattie, to make urgent regulations desired not only by the incoming Prime Minister, David Lange, but also by many in Muldoon's own party and cabinet. At the time, the option of Beattie dismissing Muldoon and replacing him, without waiting for Muldoon's resignation, was reportedly discussed. Muldoon eventually relented under pressure from his own cabinet, making the use of Beattie's reserve powers unnecessary.