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 (or their representative) without the approval of another branch or part of the government. Unlike in a presidential system of government, the head of state (or their representative) 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 (such as the United Kingdom or Canada) 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 (to withhold royal assent amounts to a veto of a bill, while to reserve royal assent, in effect, amounts to neither granting nor refusing assent, but to delay making a decision for an undetermined period). 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 (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 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 (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. 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 both cases an election was held very soon afterwards and, again in both cases, the dismissed government was massively defeated by popular vote.
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",Peter Bowers and Greg Roberts, ‘Ahern leads, but Joh rules’, Sydney Morning Herald, 27 November 1987. Cited in Geoff Barlow & JF Corkery, "Sir Walter Campbell Queensland Governor and his role in Premier Joh Bjelke-Petersen's resignation, 1987", 23. Owen Dixon Society eJournal (Gold Coast, Queensland: Bond University, 2007) 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.Barlow & Corkery "Sir Walter Campbell", 28-29
These are among several exercises of the reserve powers in Australia in the 20th century at both state and federal levels.H. V. Evatt, The King and His Dominion Governors, 1936; 2nd ed., introduction by Zelman Cowen, 1967; 3rd ed., introduction by Eugene Forsey, in Evatt and Forsey on the reserve powers, ed. by George Winterton, 1990. Donald Markwell, The Crown and Australia, University of London, 1987 - . Donald Markwell, "Griffith, Barton and the early governor-generals: aspects of Australia's constitutional development", Public Law Review, 1999.
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 [the monarch] 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."The Honourable John C. Bowen, 1937–50 ". Legislative Assembly of Alberta. Retrieved on 22 April 2007.
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".