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Reserve power

From Academic Kids

A reserve power is a power that may be exercised by the head of state of a country in certain exceptional circumstances.

Contents

Reserve powers of constitutional monarchs

Overview

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. The head of state can be a monarch or the monarch's representative in a constitutional monarchy.

Typically these powers are:

  1. to appoint a Prime Minister;
  2. to dismiss a Prime Minister;
  3. to refuse to dissolve Parliament;
  4. to force a dissolution of Parliament;
  5. 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 a dissolution, but to delay taking a decision for an undetermined period of time.
  6. Royal Prerogative

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

Within the Commonwealth of Nations 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 when he took office. 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 (1922-1928). By the time the Oath was abolished, some years later, the Irish Governor-General, like all Commonwealth governors-general, was formally advised exclusively by the Irish government, following a Commonwealth conference decision in 1927 to remove the role of formally advising a governor-general from the British government and give it instead to the national government in each dominion.

The United Kingdom

In the United Kingdom, The Queen has numerous theoretical "personal prerogatives", but in practice there are no circumstances in modern Britain where these could be justifiably exercised; most of them (save one) have not been exercised for over 100 years. Her Majesty's personal prerogatives are:

  1. the appointment of a prime minister. This was last done in 1974 when there was a hung Parliament and The Queen appointed Heath as prime minister; nowadays, political parties elect their own leaders so this removes the possibility that this prerogative might be used. In a hung Parliament as in 1924 and 1974, precedents show that The Queen would send for the leader of the largest (or next-largest) party able to command the support of a majority in the House of Commons;
  2. the refusal of a dissolution of Parliament when requested by the Prime Minister. This was last reputedly done in 1910 (but George V later changed his mind), but certainly not within the past 100 years;
  3. the dismissal of a Prime Minister and his Government. This was last done in Britain in 1834;
  4. the refusal of the Royal Assent, last done in 1708.

It should be noted that The Queen's personal prerogatives are quite distinct from those of her Governors-General; in 1975, the Australian Governor-General dismissed the Government, causing a massive outcry still felt today in the republican movement. The Queen's Private Secretary later admitted The Queen thought Sir John Kerr had acted "prematurely."

Belgium

In 1990, when a law liberalizing Belgium's abortion laws was approved by parliament, King Baudouin refused to give his Royal Assent, an unprecedented move. The cabinet declared him unable to reign for a day and, conforming to the Belgian Constitution's provision that, if the king is incapable of reigning, the government as a whole will fulfil the role of head of state, all members of the government signed the bill, passing it into law. The government declared that Baudouin was capable of reigning again the next day. It is debated whether Baudouin abdicated or whether he was just suspended.

Reserve powers in republics

Overview

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. 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.

Germany

The Basic Law 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 parliament if the latter fails to support someone as Chancellor.

The abuse of sweeping reserve powers by Adolf Hitler, given to him in the Weimar constitution by the frail and easily influencable President Paul von Hindenburg, has often been cited as an important factor in the rise of Nazism in Germany in the 1920s.

France

The 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 to call early elections. He must still consult the Prime Minister, the leaders of both houses of Parliament and the Constitutional Council.

The inspiration for writing this disposition in the Constitution was the institutional chaos and lack of governement 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 of independence 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. Critics of article 16 allege that it potentially allows the opportunity for dictatorship. A famous such critic was François Mitterrand in his book Le Coup d'État permanent (The Permanent Coup) when he was a politician in the opposition, but he made no move to put away his convenient reserve powers after he himself became President.

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