Screen LibraryThe veiled sceptre : reserve powers of heads of state in Westminster systems /
This book is a comprehensive review and analysis of the reserve powers and their exercise by heads of state in countries that have Westminster systems. It addresses the powers of the Queen in the United Kingdom, those of her vice-regal representatives, and those of heads of state in the less studied...
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| Main Authors: | |
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| Published: |
Cambridge University Press,
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| Publisher Address: | Cambridge, United Kingdom : |
| Publication Dates: | 2018. |
| Literature type: | Book |
| Language: | English |
| Series: |
Cambridge Studies in Constitutional Law
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| Subjects: | |
| Summary: |
This book is a comprehensive review and analysis of the reserve powers and their exercise by heads of state in countries that have Westminster systems. It addresses the powers of the Queen in the United Kingdom, those of her vice-regal representatives, and those of heads of state in the less studied realms and former colonies that are now republics. Drawing on a vast range of previously unpublished archival and primary material, The Veiled Sceptre contains fresh perspectives on old controversies. It also reveals constitutional crises in small countries, which have escaped the notice of most scholars. This book places the exercises of reserve powers within the context of constitutional principle and analyses how heads of state should act when constitutional principles conflict.-- |
| Carrier Form: | xxxv, 875 pages ; 24 cm. |
| Bibliography: | Includes bibliographical references and index. |
| ISBN: |
9781107056787 1107056780 |
| Index Number: | K3161 |
| CLC: | D908 |
| Call Number: | D908/T974 |
| Contents: |
Machine generated contents note: Introduction -- Prerogative powers and reserve powers -- The abrogation of prerogative and reserve powers -- The classification of the reserve powers -- The principle of the rule of law -- The principle of the separation of powers -- The principle of necessity -- The principle of representative government -- The principle of responsible government -- Ministers must be responsible to Parliament -- There must always be a government in place -- The head of state acts upon the advice of responsible ministers -- Must ministerial responsibility be taken for exercises of the reserve powers? -- Conventions -- The sources of conventions -- The test for a convention -- The flexibility of conventions -- The value of conventions and precedents -- Relevant conventions -- Lack of use does not mean the reserve powers have ceased to exist -- The head of state as guardian of the Constitution -- The codification of reserve powers Note continued: Responsible government and advice -- Express provisions concerning acting on advice -- Deeming a head of state to have acted according to advice -- Power to request the reconsideration of advice -- When receiving advice is impracticable -- The effect of advice from responsible ministers -- The different types of 'advice' -- Formal binding advice -- Advice by ministers -- Advice by the Houses of Parliament -- Advice by judicial bodies -- Advice by the Attorney-General -- Informal non-binding advice -- The need for legal and constitutional advice -- Advice on factual and political matters-Party elders and party caucuses -- Advice by the Solicitor-General -- Advice by judges -- Advice by former office-holders -- Advice by academics and practitioners -- Sources of information upon which an exercise of discretion may be based -- Uncertainty as to who should advise the head of state -- Conflicting advice -- Advice after a coup d&aposetat or revolution Note continued: Rhodesia 1965 -- Sierra Leone 1967 -- Grenada 1979 and 1983 -- Fiji 1987 -- Acting without advice -- The rights to be consulted, encourage and warn -- Bagehot&aposs formulation and its subsequent variation -- The right to be consulted and informed -- The right to encourage and warn -- The right to advise -- The right to delay acting on advice -- A duty to counsel, encourage, warn and advocate policy positions? -- The fine line between rejection of advice and persuasion to drop advice -- Commission to form a government -- Reserve power of appointment -- Advice by the outgoing chief minister -- United Kingdom -- Canada -- New Zealand -- India -- Australia -- Advice when the chief minister considers no one else can form a stable government -- The resignation and recommissioning of a chief minister to allow a new ministry -- Advice by other Members of Parliament -- The role of the parliamentary party in advising on a new party leader Note continued: Consultation with elder statesmen and others -- The role of the lower House in advising upon who should be chief minister -- Express provisions and conventions regulating appointment of the chief minister -- The application of discretion according to convention -- The formalisation or codification of convention -- Leaving the choice of chief minister to the lower House of Parliament -- Caretaker and interim ministries -- No appointment until there is a vacancy -- The benefits of incumbency -- Overriding the benefits of incumbency -- Whether the benefits of incumbency survive a change in leader -- No new appointment if no one holds the confidence of the House -- Appointment after dismissal of chief minister who held the confidence of the House -- Convention regarding who to call upon to form a government -- Disputed rule no 1-That the head of state must call upon the Leader of the Opposition to form a government Note continued: Disputed rule no 2-That the head of state must call upon the leader of the party with the largest number of seats to form a government -- Disputed rule no 3-That the head of state must call upon the person who moved the successful no-confidence motion to form a government -- The overriding convention -- How to assess who is most likely to command the confidence of the House -- Status of confidence and supply agreements -- Factors that the head of state should or should not take into account in calling on a person to form a government -- Proportion of the vote v seats in the lower House -- Misleading statements during the election campaign -- A constructive vote of confidence by the lower House -- Likely stability of a government -- Appointment where an election results in a hung Parliament -- Newfoundland 1971-2 -- Fiji 1977 -- Tasmania 2010 -- Mid-term appointment of a chief minister in a minority government -- Ceylon 1952 -- Australia 2013 Note continued: Appointment of a chief minister leading a coalition -- Appointment of a person who can secure the passage of supply -- Appointment after the sudden death of a chief minister -- Appointment after the chief minister becomes disqualified from office -- Conditions on appointments -- Appointment of a chief minister who does not hold a seat in the lower House -- Appointment of a chief minister from outside Parliament -- Appointment of a chief minister who sits in the upper House -- Appointment of a chief minister while Parliament is dissolved -- Appointment of a chief minister after Parliament has been abolished -- Judicial challenges to appointment of a chief minister -- Vanuatu -- Solomon Islands -- Nauru -- Malaysia-State of Sabah -- India-State of Assam -- Appointment and removal of other ministers -- Introduction -- Dismissal, disqualification and removal -- Disqualification and incapacity -- Automatic removal due to loss of confidence Note continued: Responsibility of a chief minister to resign -- Positive and negative exercises of power -- Rejection of the resignation of a Prime Minister -- Express constitutional provisions that require, permit or limit the dismissal of the chief minister -- Requirement to dismiss -- Discretion to dismiss -- Vacation of office after a general election -- Limitations on dismissal -- Effect of the resignation, dismissal or death of a chief minister -- Dismissals, dissolutions and forced resignations -- Dismissal and the need for an alternative government and dissolution -- Forced dissolutions amounting to the dismissal of the government -- Refusal of a dissolution amounting to an effective dismissal -- Refusal of other advice, causing resignation and dissolution -- Forced or induced resignations amounting to effective dismissal -- Grounds for dismissal-Failure to resign after the loss of an election or loss of confidence in the House Note continued: Failure to resign after loss of an election -- Failure to resign after defeat on a vote of no-confidence by the lower House -- Defeat of a caretaker government appointed after dismissal of previous government -- Temporary loss of confidence -- Dismissal for lack of confidence when there has been no vote on the floor of the House -- Dismissal for failure to summon House when confidence is at issue -- Grounds for dismissal-Loss of support of own party -- New South Wales 1916 -- Queensland 1987 -- New Zealand 1984 -- Grounds for dismissal-Illegality or corruption -- Quebec 1891 -- British Columbia 1903 -- Manitoba 1915 -- New South Wales 1932 -- Tasmania 1947 -- British Columbia 1991 -- Grounds for dismissal-Breach of fundamental constitutional principle -- Quebec 1878 -- Rhodesia 1965 -- Grounds for dismissal-Failure to achieve supply -- Examples of the fall of governments involving the failure to secure supply Note continued: Supply and dismissal of governments in Victoria -- The dismissal of the Australian Whitlam Government 1975 -- The grant of special warrants authorising expenditure -- Grounds for dismissal-The government is out of step with the people -- Obligation to warn before dismissing a government -- Reversal of a dismissal -- Nigeria-Western Region -- Malaysia-State of Sarawak -- Fiji -- Papua New Guinea -- Refusing or forcing a dissolution -- Constitutional principles and the refusal of dissolutions -- Responsible government -- Representative government -- Who may request a dissolution? -- The relationship between resignation, dissolution and dismissal -- Dissolution requested by a caretaker government -- Must a government resign if refused a dissolution? -- Express power to refuse a dissolution -- Implied power to refuse a dissolution -- The reserve power to refuse a dissolution in the United Kingdom prior to 2011 Note continued: The Lascelles letter about the Sovereign&aposs powers -- The extension to other Realms of the reserve power to refuse a dissolution -- The effect of fixed-term Parliaments -- Factors favouring the grant of a dissolution -- Refusal of a dissolution where the government holds majority support -- Must a government justify an early election? -- Dissolution where a government has lost the confidence of the lower House -- The King/Byng Affair -- Should Byng have accepted King&aposs advice to dissolve? -- Should Byng have granted a dissolution to Meighen or recommissioned King? -- Newfoundland-Refusal of a dissolution to the Bond Government in 1908 -- Victoria-Refusal of a dissolution to the Bowser Government in 1918 -- New South Wales-Refusal of a dissolution to the Dooley Government in 1921 -- New Zealand-Forecast of action if the Massey Government fell in 1922-3 -- Tasmania-Grant of a dissolution to the Cosgrove Government in 1950 Note continued: Refusal of a dissolution to a chief minister who was commissioned to form a government but could not obtain the confidence of Parliament -- Refusal of a dissolution to a chief minister who has lost the support of his or her party or coalition government -- South Africa -- Ceylon -- Queensland -- United Kingdom -- Refusal of a dissolution timed to exploit a leadership change process in the Opposition -- Refusal of a dissolution during a time of peril -- Dissolution as a condition of appointment as chief minister -- Condition imposed upon the making of an appointment-That a dissolution be requested -- Condition imposed upon acceptance of the office of chief minister-That a dissolution be granted -- Forecasts and promises of future dissolutions -- Conditions and assurances required before a dissolution is granted -- Supply -- Other conditions or assurances -- Litigation to overturn a dissolution -- Vanuatu -- Nepal -- India -- Pakistan Note continued: Litigation to force a dissolution -- Express restrictions upon the grant of dissolutions -- Effect of fixed-term Parliaments on reserve powers concerning dissolutions -- United Kingdom -- Australia -- Canada -- Impact upon other conventions and reserve powers -- Forced dissolutions and a positive power to dissolve Parliament without ministerial advice -- Forceful or moral persuasion to request a dissolution -- Forced dissolution arising from the dismissal of a government -- Is there a positive reserve power to dissolve Parliament without advice? -- The doctrine of necessity as a source of a positive discretion to dissolve -- The rule of law as a source of a positive discretion to dissolve -- Responsible government as a source of a positive power to dissolve -- Representative government as a source of a positive power to dissolve -- Express discretion or requirement to dissolve Parliament without ministerial advice Note continued: The practicalities of dissolving Parliament without ministerial advice -- Caretaker conventions and constitutional principle -- The development of the caretaker conventions -- The obligation of a government to remain in office pending the appointment of a new government -- Express constitutional provisions regarding the continuation of government -- History of recognition of caretaker governments and conventions -- Refusal to make significant appointments during the caretaker period -- The requirement that caretaker governments only undertake routine government business -- Use of the terminology of 'caretaker' and 'purdah' -- The formalisation of the caretaker conventions -- Shift of emphasis from ministerial constraint to public service rules -- Periods in which caretaker conventions apply -- Pre-election caretaker period -- Post-election caretaker period -- Period after a mid-term loss of confidence Note continued: Transition period between chief ministers of the same party -- Application of caretaker conventions -- The content of caretaker conventions -- Appointments -- Major contracts and policy decisions -- Consultation with the Opposition -- Allowing the Opposition to consult with public servants -- Government advertising and the independence of the public service -- Status of the caretaker conventions -- Whether there is a reserve power to reject or defer advice that breaches the caretaker conventions -- Examples of refusals to act upon advice that breaches the caretaker conventions -- When the head of state may enforce the caretaker conventions -- No obligation on a head of state to enforce the caretaker conventions -- Publicity of breach may be sufficient to provide a political remedy -- Appointment of ministers during a caretaker period -- When Parliament is summoned -- The power to summon Parliament after its dissolution or prorogation Note continued: Maximum period between sessions of Parliament -- Summoning of Parliament after an election -- Summoning Parliament during an emergency -- Recalling a House that has been adjourned -- Is the power to summon Parliament a reserve power? -- Express reserve power to summon Parliament -- Convention and reserve powers to summon Parliament -- India -- New Zealand -- Australia -- Canada -- Solomon Islands -- Tuvalu -- The summoning of Parliament by order of the courts -- Constitutional principles and a reserve power to summon Parliament -- The principle of the rule of law -- The principles of responsible and representative government -- The doctrine of necessity -- Conclusion -- Prorogation and its consequences -- Express requirements concerning prorogation and sessions of Parliament -- Is prorogation a reserve power? -- The rights to warn and encourage -- Prorogation in breach of constitutional requirements Note continued: Prorogation when the Government does not hold the confidence of the lower House -- Prorogation at a time when holding an election would be undesirable -- Prorogation where no other responsible government can be formed -- Prorogation where there is a temporary loss of confidence -- Prorogation where the alternative government is likely to be short-lived -- Prorogation where a motion of no-confidence is not yet before the House -- Prorogation after the dismissal of a government -- Prorogation when supply is about to run out -- Prorogation to disqualify absent members or end pairing arrangements -- Prorogation to cause a warrant of imprisonment for contempt to lapse -- Prorogation to prevent parliamentary scrutiny -- Prorogation to terminate parliamentary inquiries -- Prorogation to prevent the tabling of reports -- Prorogation to terminate orders for the production of documents -- Prorogation to prevent the House from sitting Note continued: Prorogation contrary to a resolution of the House -- Prorogation in order to recall the House to make it sit -- Assent to legislation -- The relevant constitutional principles -- Is the grant of royal assent a legislative or executive act? -- Textual indicators -- Judicial observations -- Academic views on the prevailing principle -- Practice and procedure -- Is there a reserve power to refuse assent? -- Refusal of assent in the United Kingdom-Has the power fallen into desuetude? -- Express constitutional provisions concerning assent -- Discretion regarding assent in the older Realms -- Reform of discretionary power -- Refusal of assent on ministerial advice -- Refusal of assent due to error in bill -- Refusal of assent on ministerial advice to a bill passed against the wishes of the government -- Refusal of assent to a bill passed under a previous government without an intervening dissolution -- Delay in the grant of assent Note continued: Withdrawal of assent once given -- Refusal of assent to a bill on the ground of illegality or invalidity -- Referral of bills to a court to test constitutional validity -- Refusal of assent on constitutional grounds where it has not been tested in a court -- Failure to meet mandatory procedural requirements -- Refusal of assent to a bill that subverts representative democracy or fundamental rights -- Refusal of assent to a bill that subverts the system of representative democracy -- Refusal of assent to a bill that affects fundamental human rights -- Refusal of assent because of a lack of a mandate -- Refusal of assent to a bill so as to avert violence or a national disaster -- Refusal of assent to a bill due to the wishes of the head of state -- Refusal of assent because of personal objection to the bill -- Refusal of assent to a bill that is contrary to the public will Note continued: Refusal of assent or consent to bills affecting the rights, powers or interests of the head of state -- Consent or refusal of consent to bills affecting royal prerogatives and interests -- Refusal of assent v dismissal of Ministers or dissolution -- Justiciability of withholding of assent -- The power to suggest amendments to a bill -- Consequences of the refusal of assent -- The head of state as the guarantor of legality -- The conflicting principles that apply to illegal or unconstitutional advice -- How such a conflict is usually resolved in practice -- Reference to a court -- Rejection of advice on the ground that acting on it would involve a breach of the law -- The application of the rule of law to the head of state -- Who may determine illegality? -- Illegality and the Lang dismissal -- Kerr&aposs views on illegality -- Illegality in New Zealand -- Illegality in Canada -- Advice that is inconsistent with a judicial decision Note continued: Reconciliation of the constitutional principles -- Rejection of advice on the ground that it is unconstitutional -- Rejection of advice on the ground that the chief minister has no jurisdiction or power to give it -- Rejection of advice on the ground that a matter of constitutional principle is involved and the government has no mandate -- Rejection of advice to swamp the Legislative Council of New South Wales -- Canada and unilateral constitutional reform -- Judges as vice-regal officers -- Conclusion -- The head of state-Election and succession -- The status of a vice-regal officer-Head of state or delegate of the Sovereign? -- The respective powers of the Sovereign and vice-regal representatives -- Appointment and dismissal of vice-regal officers pre-1930 -- The 1926 and 1930 Imperial Conferences -- The appointment of the Governor-General of Australia in 1930 -- Irish Free State 1932-Removal and appointment of the Governor-General in 1932 Note continued: The removal of James McNeill as Governor-General -- Whether the offices of Governor-General and President could be held simultaneously -- The Acting Governor-General and the Oath of Allegiance -- Appointment of a new Governor-General -- The post-1930 convention for the appointment of vice-regal officers -- Canada 1935-Appointment of a new Governor General -- Fiji 1941-The fine line between forced resignation and recall -- Pakistan 1953-The failed attempt to remove the Governor-General -- Ceylon 1962-The removal of the Governor-General -- Western Region of Nigeria 1962-The removal of the Governor -- Dismissal of the Premier -- Removal of the Governor -- The Privy Council&aposs decision -- Rhodesia 1965-Whether the Governor should resign or remain -- Sierra Leone 1967-Removal of the Governor -- St Kitts 1969-Resignation of the Governor -- Grenada 1974-Removal or resignation of the Governor -- Queensland 1975-The aborted removal of a State Governor Note continued: St Lucia 1980-Resignation of the Governor-General -- St Lucia 1981-2-Removal of the Governor-General -- St Kitts 1981-Removal of the Governor -- Victoria 1985-Resignation of the Governor -- Fiji 1987-Resignation of the last Governor-General -- Papua New Guinea 1991-Resignation of the Governor-General -- Tuvalu 1993-Replacement and removal of Governors-General -- Sir Toaripi Lauti&aposs replacement -- Sir Tomu Sione&aposs removal -- St Lucia 1997-Resignation of the Governor-General -- Australia 2003-Resignation of the Governor-General -- Tasmania 2004-Resignation of the Governor -- Papua New Guinea 2003-4-Invalid appointment of Governor- General -- Papua New Guinea 2010-Invalid reappointment of Governor- General -- Papua New Guinea 2011-Suspension of the Governor-General -- Tuvalu 2013-Attempt to remove Governor-General overtaken by events -- Antigua and Barbuda 2014-Resignation of the Governor- General Note continued: St Kitts 2015-Resignation trumped by removal from office -- Removal by way of replacement once initial term has expired -- Does the Queen have a reserve power to reject advice to dismiss a Governor-General? -- Rejection of advice at the informal stage -- Tactical delay as means of effectively refusing advice -- Tactical delay in the appointment of a new Governor-General -- Other methods of appointment of the Governor-General -- Canadian Advisory Committee on Appointments -- Approval by the Opposition -- Appointment of Governor-General by outgoing Governor- General -- Qualification and disqualification of Governors-General -- Elected Governors-General -- Appointment of a directly elected Governor-General -- Appointment of an indirectly elected Governor-General -- Term of office -- Dismissal from office -- Deputies and Administrators -- Abdication, resignation and the termination of Crowns -- Abdication by the Sovereign Note continued: Resignation or abandonment of office by vice-regal officers -- Termination of the Sovereign&aposs role in a Realm. |