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The veiled sceptre : reserve powers of heads of state in Westminster systems / Anne Twomey

Author
Twomey, Anne
Published
Cambridge, United Kingdom : Cambridge University Press, 2018.
Physical Description
xxxv, 875 pages ; 24 cm.

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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 -- 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 -- 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 -- 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 -- 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 -- 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 -- 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 -- 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 -- 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 -- 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 -- The need to exhaust Parliament of other possible governments -- Refusal of a dissolution when a vote of no-confidence is pending -- Refusal of a dissolution where supply is not available to cover the election period -- New Zealand -- Newfoundland -- Victoria -- Western Australia -- Western Samoa -- The importance of securing supply -- Refusal of a dissolution because the lower House has voted against it -- Dissolution advised by a chief minister who leads a minority government --, Contents note continued: Refusal of a dissolution to a chief minister who has recently lost an election -- Request for dissolution before Parliament has sat following an election -- Defeat upon facing Parliament after an election -- Defeat some months after the previous election -- A defeated chief minister is not entitled to a second dissolution -- Exception-Dissolution if Speaker cannot be elected -- Exception-Dissolution if no viable government can be formed -- 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 -- 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 -- 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 -- 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 -- 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 -- 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 -- 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 -- 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 -- 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 -- 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 -- The removal of James McNeill as Governor-General -- Whether the offices of Governor-General and President could be held simultaneously --, and Contents note continued: 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 -- 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 -- 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 -- Resignation or abandonment of office by vice-regal officers -- Termination of the Sovereign&aposs role in a Realm.
Subject(s)
ISBN
9781107056787 (hardback)
1107056780 (hardback)
Bibliography Note
Includes bibliographical references and index.
View MARC record | catkey: 24469200