August 21

An Historical Perspective On The Reserve Powers


The first authority on the reserve powers I wish to introduce is Dr H.V. Evatt, who is chiefly remembered as a Federal ALP politician. From 1941 until 1949 he was Attorney-General and Minister for External Affairs and was Deputy Prime Minister to Mr J.B. Chifley from 1946. He was Federal Leader of the Opposition from Chifley’s death in 1951 until his appointment in 1960 as Chief Justice of New South Wales from which position he resigned because of ill health in 1962. But all this could not have been foreseen when Dr Evatt published The King and His Dominion Governors in 1936. At that time he was a Justice of the High Court of Australia. He had been appointed to that position in the midst of much controversy in 1930 with a background in politics as a Labour member of the New South Wales Legislative Assembly. The purpose of this study of his was:
to re-examine some of the constitutional rules and practices whereby, both in Britain and in the self-governing Dominions, doctrines of overwhelming importance are treated as being too vague to be defined at all, or, if defined, defined in an unsatisfactory manner, and never regarded as enforceable by the Courts of the land. These rules and practices relate, in general, to what may be called, not for the first time, the ‘Reserve Powers’ of the Crown.

In 1936, of course, there was no political entity within what was still known as the British Empire and Commonwealth of Nations which could be described in a formal sense as a republic not even the Irish Free State which comprised some twenty-six counties and which since 1922 had been governed from Dublin and not from Westminster. (The other six counties of Ireland constituted the Province of Northern Ireland which still remains part of the United Kingdom.) In 1937 the Irish Free State adopted the name Eire. According to Dr Conor Cruise O’Brien, the Irish Republic as it was proclaimed in 1949 is still known to many in Northern Ireland as the Free State or as Eire pronounced "Eerie"; some there even combine the two terms to name it the "Eerie Free State". It is important to place Evatt’s work in the context I have mentioned as characterizing the British Commonwealth in 1936 because the question of the reserve powers takes on an entirely new dimension when it comes to adapting them from a monarchic state to some non-monarchic successor state.

The second edition of Evatt’s book was published in 1967, two years after the author’s death and during Lord Casey’s incumbency as Governor-General. Professor (later Sir) Zelman Cowen, who was to become Governor-General ten years later, wrote in his Introduction to that edition that "[these] reserve powers (exercisable by the Queen or by her representative in a Commonwealth country) include the powers to dismiss a ministry, to grant or refuse a dissolution of a legislative chamber, to designate a Prime Minister, and to appoint or to refuse to appoint Peers in the House of Lords or in a comparable Upper House". (Note that Sir Zelman used the word "include" when he enumerated those reserve powers; I assume that he did not claim to have given an exhaustive list.) In Australia’s experience, that is to say, since 1901, all those reserve powers listed by Sir Zelman have been exercised and I have had circulated a list, by no means complete, of the incidents related thereto.
But first let me make a disclaimer as to my contribution. The subject-matter of this lecture is obviously very complex and its content vast. In the time available to me, I can attempt little more than a perfunctory survey. Those in my audience who wish to absorb the material in greater depth can do so by consulting a single volume entitled
Evatt and Forsey on the Reserve Powers.
And this enables me to introduce my second authority on this subject, a distinguished Canadian scholar, the late Dr Eugene Forsey, who published in 1943 his classic text, The Royal Power of Dissolution of Parliament in the British Commonwealth. For many years out of print, it was reprinted in 1968. Professor George Winterton of the University of New South Wales in a publication by Legal Books, Sydney, in 1990 brought together the respective books of Evatt and Forsey in that single volume I have just mentioned and contributed his own Foreword. The book contains Evatt’s own Preface, a Foreword to the first edition of Evatt’s work by a then prominent socialist, Professor Harold Laski of the London School of Economics and Political Science, and the respective Introductions to both editions by Professor K.H. (later Sir Kenneth) Bailey and Sir Zelman Cowen. As something of a bonus it also includes a special Introduction by Dr Forsey entitled "The Present Position of the Reserve Powers of the Crown". Until he wrote that Introduction, Dr Forsey, apart from contributing an Epilogue to Sir John Kerr’s memoirs, Matters for Judgment, had only published on one of the reserve powers, the power of dissolution.
Turning now to those enumerated reserve powers, it is as well to say at the outset that the power to dismiss Ministers, to which Cowen has given pride of place, has been exercised in Australia twice and in each case it has involved an ALP ministry. In 1932 Air Vice Marshal Sir Philip Game as Governor of New South Wales dismissed J.T. Lang’s Ministry for acting in flagrant breach of the law. In 1975 the Governor-General, Sir John Kerr, dismissed Gough Whitlam’s Ministry because it had been denied Supply by the Senate on three separate votes over a period of more than three weeks. Despite the protracted nature of this deadlock over a matter as vital to the country’s stability as appropriation for the lawful servicing of government commitments, Mr Whitlam refused to advise an election of the House of Representatives or a double dissolution as was then possible. Furthermore he disregarded his own precedent in 1974 when the mere threat of a denial of Supply by the Senate impelled him swiftly to advise the Governor-General to grant him a double dissolution as was then possible.
The dismissal of Jack Lang in 1932 had provided the inspiration for Dr Evatt’s book in which he argued for the codification of the reserve powers, as to the existence of which he was in no doubt.
In 1952 the Governor of Victoria, General Sir Dallas Brooks, asked the Premier, Mr Tom Hollway, to resign after he had already refused him a dissolution. (Mr Hollway had been commissioned principally to obtain Supply which had been denied to the previous government by the Legislative Council which Mr Hollway and those supporting him controlled.) Although this request by the Governor was not technically a dismissal, it is hard to see how, in the circumstances, a dismissal could have been avoided if Mr Hollway had refused to act as the Governor had requested. This latter incident has been dealt with at greater length in that chapter of mine, copies of which I have had circulated, extracted from a book edited by Professor Anthony Low. As I said, the Governor had refused the Premier a dissolution and this is the second of the reserve powers which Sir Zelman Cowen had itemized.
The third of the reserve powers to which Sir Zelman had referred is the designation of a Prime Minister. Normally this power in as much as it involves any discretion by the Sovereign, by a Governor-General or by a Governor, is now pretty well dormant. Political parties now have formal processes for determining their own leadership and in a clear case of one party in Parliament establishing a commanding lead over all other parties or a recognized working relationship between two or more parties which establishes a working parliamentary majority, the discretion open to the Sovereign or to her representative is strictly limited to the party leader who stands out unchallenged.
It should be recalled, however, that not much more than one hundred years ago Queen Victoria exercised her discretion on the resignation of Mr W.E. Gladstone as Prime Minister in not seeking his advice as to a successor. Rather than sending for Sir William Harcourt, the Chancellor of the Exchequer, she sent for Lord Rosebery, the Foreign Secretary, and he "kissed hands" as the new Prime Minister. It seems that Queen Victoria did not even consider the claims of Lord Spencer, whom Mr Gladstone would have recommended as his successor if he had been asked. The present Queen when called upon to appoint a successor to Sir Anthony Eden on his resignation in 1957 chose Mr Harold Macmillan in preference to Mr R.A. Butler.
Again in 1963 the Queen chose Lord Home in preference to Mr Butler on the resignation of Mr Macmillan. In both instances the Queen relied on advice as to which of the two contestants in question enjoyed the confidence of the Conservative Party. In 1894, however, Queen Victoria did not wait until soundings of that sort had been taken within the Liberal Party; she simply exercised her discretion and no authority at the time questioned her right to do so. That sort of choice has never been open to the Sovereign in respect of the Labour Party and it has ceased to be the case with the Conservative Party since it adopted, for the first time in February 1965, a formal process of election for its parliamentary leadership, to take effect whether that party was in or out of office.
There can be occasions, however, when the Sovereign is guided into making a choice of a Prime Minister by considerations which are not affected by majority opinion in the particular political party concerned. During World War I the British Prime Minister, Mr H.H. Asquith, who as a Liberal had held that office since 1908 and who had led an all-party wartime coalition since May 1915, considered that his position, for reasons I cannot outline here, had been made so untenable that he resigned in December 1916 taking almost all the Liberal Ministers with him. King George V sent for Mr David Lloyd George, the Secretary of State for War and a former Chancellor of the Exchequer. Although a Liberal Mr Lloyd George had the backing of the Conservative leader in the House of Commons, Mr Andrew Bonar Law, who was then Secretary of State for the Colonies and of other prominent Conservatives. The King, because he had been advised of this by Mr Bonar Law, invited Mr Lloyd George to become Prime Minister. During his term of office as Prime Minister from December 1916 until October 1922, Mr Lloyd George was not the leader of any political party. In the words of that well-known Conservative Party historian, Lord Blake:
Lloyd George’s position was in some ways weak and paradoxical. He could claim no ‘mandate’. He had risen to power through a process obscure to Parliament, to the public and in some details even to historians… Since Asquith retained the Liberal leadership, organization and funds, he was a Prime Minister without a party. He was a Liberal whose principal support came from Conservatives and was far from whole-hearted…
Lloyd George’s dependence on Conservative support proved to be his undoing in 1922 when it was withdrawn. He resigned from the office of Prime Minister and was never to hold office again. The historian, A.J.P. Taylor, observed of him that he was the first Prime Minister since the Duke of Grafton to live openly with his mistress and the first since Sir Robert Walpole to leave 10 Downing Street richer than when he had entered it. His rather unorthodox methods of financing his position through what today would be called networking gave rise to the jingle, "Lloyd George knew my father: Father knew Lloyd George" repeated to the tune of "Onward Christian Soldiers". When some years after his fall Lloyd George propounded some schemes for relieving unemployment and reviving industry under the slogan "The New Deal", a Tory Minister, Oliver Stanley, convulsed the House of Commons and the Welsh wizard himself by speaking of "The New Deal from the Old Dealer".

A somewhat similar situation in terms of leadership arose in May 1940 when the Prime Minister, who was also leader of the Conservative Party, Mr Neville Chamberlain, felt that he had to stand aside for someone else when a division on a motion of censure in the House of Commons was defeated by only 281 to 200 with sixty Conservatives abstaining and thirty voting with the Opposition and when the Labour Party and the Liberal Party rejected his subsequent offer to join a wartime coalition under his leadership. The question then arose as to whom Mr Chamberlain could recommend to King George VI as his successor. The choice clearly lay between the Foreign Secretary, Lord Halifax, and the First Lord of the Admiralty, Mr Winston Churchill, both of them Conservatives. To quote Lord Blake again:
To the general public Churchill was the obvious man but to those in the corridors of power the answer was not so certain. He had made a great many enemies, and he was reputed to be reckless. Halifax seemed a safer bet, and we now know that the King, Chamberlain and the principal figures in the Labour and Liberal parties preferred him. Moreover Churchill had frequently declared that he would serve under anyone acceptable in a crisis such as this.
It was Lord Halifax who eased the way for Churchill’s succession by talking himself out of accepting office as Prime Minister. He did this by praying in aid the lame and entirely unconvincing excuse that his peerage would constitute a handicap in discharging that office. No-one seemed to be persuaded of this except Halifax, and even then it is doubtful whether he was in his heart of hearts persuaded of it. But his reluctance proved decisive. In the event, because Halifax adopted the role of a shrinking violet, Churchill became Prime Minister. Again to quote Lord Blake:
Churchill’s appointment was far from popular in the Conservative party. The cheers which greeted him when he first entered the House as Prime Minister came from the Liberal and Labour benches. The Conservatives reserved theirs for Chamberlain who, significantly, retained the leadership of the party. It was like Asquith and Lloyd George after 1916, though with this difference: Chamberlain agreed to serve under his successor; Asquith did not. If Chamberlain had lived, the situation could have been a delicate one. But he fell ill and resigned in October, dying a few weeks later. There was no lack of high minded persons to advise Churchill that he would be better placed to unify the nation if he was not tied to the leadership of a party. Churchill had more sense. He had seen the fate of Lloyd George. To the end of his political career he regarded the Conservative party machine and many of the party faithful with suspicion and dislike. For that very reason he was determined to be on top of it and them. He at once indicated that he would accept the leadership, and by now his prestige made his unanimous election a certainty.
The point I wish to make in respect of the appointment of a Prime Minister in these extraordinary circumstances is that any advice given to the Sovereign, however persuasive, is not binding. Let us suppose that Lord Halifax had been willing to accept office as Prime Minister in 1940 with exactly the sort of party political support Lord Blake has outlined; but that King George VI had already formed that admiration for Churchill which was to become very evident subsequently and had concluded, his personal friendship with Lord Halifax notwithstanding, that Churchill was the more obvious contender, given the country’s desperate plight. The King could easily have talked Halifax out of pressing his claim for the position and have appointed Churchill to general popular acclaim. The other important point to make is that the Sovereign’s action in commissioning a Prime Minster in such extraordinary circumstances confers on that leader, at least for the time being, a certain something. Even if one should hesitate in claiming that that something is in the nature of the mandate of Heaven, it does nonetheless lend a certain patina of legitimacy. For the Sovereign or her representative is a legitimizing agency. Another example I could give and explain at greater length if I had the time would be the role of King George V in asking Mr Ramsay MacDonald in 1931 to remain as Prime Minister he had offered to resign but as the head of an all-party National government. One of the weaknesses in Dr Evatt’s book, which in other respects is also rather muddled, is that he was prepared to give too much respect to the line on that event which was peddled by Professor Harold Laski and Mr Leonard Woolf, the latter a largely forgotten figure but for his marriage to Virginia.
Australia has not presented us with examples of an accession to the office of Prime Minister such as Lloyd George’s and Churchill’s because there was no pressing impulse in this country in either of the world wars to form an all-party coalition. Australia survived both struggles without there being anything in the nature of a party truce. But who is to say that some crisis might not arise in the future when for a time at least there is a suspension of party conflict and some leader might emerge from the ranks of parliamentarians whose accession to the office of Prime Minister in any other circumstances would seem inconceivable? And in commissioning such a Prime Minister the Governor-General’s role would be significant as a legitimizing agency even if his discretion were to be circumscribed by other political pressures. In one the papers I have had circulated, I describe the situation in 1939 and 1967 on the sudden death of the Prime Minister of the day who had been leading a non-Labour coalition and the Governor-General’s handling of the matter in each case.

The last of the reserve powers itemized by Sir Zelman Cowen was the power to appoint or to refuse to appoint Peers in the House of Lords or in a comparable Upper House. As far as Australia is concerned that power is now not even dormant but defunct. The Upper House of the Commonwealth Parliament, the Senate, has never been a nominated chamber nor have the Upper Houses of Victoria, South Australia, Western Australia and Tasmania. Queensland’s nominated Upper House was abolished in 1922 and New South Wales’s Upper House ceased to be a nominated chamber in 1933. Such disputes as had arisen in those two States over the nomination of additional Legislative Councillors are now of little more than historical interest. I have included the Queensland crisis of 1907 in the document I have had circulated but for similar controversies in New South Wales I would simply refer you to the account Dr Evatt has given of them in The King and his Dominion Governors. As to the House of Lords I think it is fair to say that The Queen in practice would not refuse to accept the recommendation by a Prime Minister that some identities of his own choosing be created Peers of the Realm. The Queen would no more do this in practice than she would refuse to give Royal Assent to a Bill which had been passed by both Houses of Parliament. There must have been times, however, when she has given her consent in both instances with gritted teeth.

Of the four reserve powers enumerated by Sir Zelman Cowen, this can be confidently stated of three of them. The power of dismissal one would not expect to be exercised frequently but I should add that the two instances of its exercise in Australia were, in my view, fully justified. Of Sir John Kerr’s exercise of that power in 1975 I have the most vivid recollection and I have never experienced as much as a moment’s doubt as to its correctness. For as long as the Senate retains the power to deny Supply to an administration and the doctrine first propounded by Gough Whitlam on 12 September, 1975, persists that such an administration is not obliged to resign or to seek a dissolution of the House of Representatives, then this power of dismissal will still retain a significant potential. The power to designate a Prime Minister would only in exceptional circumstances involve the exercise of some discretion but, as I have already remarked, it is important as a legitimizing influence. Finally, for the reasons I have given, the power of refusal of nominations to an Upper House is defunct in Australia and in a near-permanent state of dormancy in the United Kingdom. This leaves the power to refuse a dissolution.
In 1986 I attended a seminar at Nuffield College, Oxford, which was addressed by Mr Roy Jenkins, as he still was. A year later he was elected to succeed Lord Stockton as Chancellor of the University of Oxford and some years after that in his acceptance of a peerage he was to disdain the notion, as he put it, of "cloaking [himself] in the senile anonymity of a territorial title". So he is now known as Lord Jenkins but with the addition "of Hillhead", the name of the Glasgow constituency he represented when I listened to him in 1986. In the course of this seminar the possibility was canvassed of the next Parliament being one in which Mrs Thatcher’s Conservatives were reduced to the position of lacking a working majority but with no other party being raised itself by that situation to majority status. The popular term at the time was to describe such a Parliament as a hung Parliament. Jenkins confidently claimed that there could be no question of The Queen then refusing a dissolution to Mrs Thatcher if she asked for it. As far as he was concerned, this power had remained dormant for so long in Britain that it simply could not be revived for the first time of asking in a hung Parliament. Of course, he added, if the election Mrs Thatcher had been granted resulted in a Parliament with little change in the numbers claimed by the respective parties, then the laborious process of drawing an administration from its membership would have to begin. Well, one might have asked, why incur the expense of a supernumerary election to delay such a process? As one who had been raised in the State of Victoria and who at the time of that seminar was only a few months away from marking his fiftieth birthday, Jenkins’ confident declaration struck me as very strange indeed. In my lifetime a dissolution has been refused by a Governor of Victoria on no less than four occasions. The first was by Sir Winston (later Lord) Dugan in 1943. Lord Dugan’s successor, Sir Dallas Brooks, refused a dissolution on three occasions: in May 1950 and twice in October 1952. The events surrounding these refusals are outlined in both documents I have had circulated. In one of the documents I have given examples of the exercise of vice-regal powers since 1901, even if some of them have amounted to little more than the exercise of vice-regal influence. The instances where dissolutions have been refused have been highlighted in bold print. They amount to seven in all.
The reserve powers, as far as Australia is concerned, have amounted to significantly more than the hypothetical. This is why they have proved such a stumbling block to those Australians "who are faithfully wedded to republicanism — not as that word would have been understood by Montesquieu and others like him, but as misinterpreted by Australia’s anti-monarchic confederates in their fevered exertions to remove The Queen from Australia’s Constitution".
I would be trenching upon eternity if I were to give a detailed account of the convolutions our republican friends have demonstrated as they have wrestled with this problem from the time the Republic Advisory Committee deliberated and duly reported to the Keating government. My own view is that Australia is best served in not having the reserve powers codified; but the sine qua non of that position is that Australia should remain a constitutional monarchy.
The risks run in any attempt at codification have been set out clearly in Dr Eugene Forsey’s Introduction to Professor Winterton’s omnibus volume which I have already mentioned. Section G of that Introduction is entitled "Should the Reserve Powers be Embodied in Law, or in a Written Constitution?" I cannot give a digest of his arguments in their entirety because they run to more than ten pages, but his opening paragraphs are instructive in themselves. And I quote:
Dr Evatt argued that the reserve powers should be embodied in positive law: ‘definite constitutional rules, enforceable, if necessary, by the ordinary courts of law’. This, he believed, would obviate the disputes, often bitter, which often arose when a reserve power was exercised.
At this point I would interpolate that involving the courts would not necessarily obviate any bitter disputes. Dr Forsey then continued:
When the former British colonies became independent after 1945, the draftsmen of their Independence Constitutions took Evatt’s advice on several points. So did some later draftsmen. The results have not always fulfilled their expectations: or as Sir Zelman Cowen puts it, ‘it is not clear that this has been done with conspicuous success’. This is not altogether surprising. The reserve powers are, by definition, powers to be used only when the normal functioning of parliamentary government breaks down. The circumstances in which a breakdown may take place are not easy to set out in detail, comprehensively and with precision. They have a disconcerting way of popping up in utterly unforeseen, even unforeseeable, guise.
To prevent disputes, a mere general statement would be worse than useless. Almost the whole field of argument would be left wide open. Precision, detail, comprehensiveness are indispensable. A law covering, with precision, all the possible circumstances which might call for the exercise of even a single reserve power, let alone the lot, is surely beyond the wit of even the most learned and imaginative draftsman. There are bound to be loose ends. Many of the new Constitutions . . . leave the Governor-General with considerable discretion.
Also, any formula the draftsman may produce will risk giving the Crown or its representatives either too much power or too little. Moreover, any formula, however imperfect, will be law, ‘enforceable, if necessary, by the ordinary courts’; and it will the courts’ interpretation of the actual words of the law which will govern. As the Judicial Committee of the Privy Council said in Adegbenro v. Akintola, ‘it is . . . the wording of the Constitution itself that is to be interpreted and applied, and this wording can never be overridden by the extraneous principles of other Constitutions which are not explicitly incorporated in the formulae that have been chosen as the frame of this Constitution’.
This will apply equally to any ordinary law. The precise words of the law will govern, not appeals to practice in the United Kingdom or elsewhere. It will be no use arguing: ‘Oh! but that’s not what the framers of the law meant. It’s just "an attempt to frame United Kingdom constitutional conventions (or some others) in terms of positive law", and it’s the convention, not the law, that governs.’
The court’s interpretation of the law might produce a situation which almost everyone would agree was ridiculous or intolerable; might ordain the impracticable. The unfortunate country would be stuck with it until the law, or the written Constitution, could be changed.
If the formula were part of the ordinary law, which could be changed by another ordinary law, the difficulty might be serious enough. Getting a judgment from the highest court might take some time; once it had been delivered, getting Parliament to make the change might also take some time; and the delay, single or double, might cause enormous practical difficulties. If the formula were part of a written Constitution, which could be changed only by a special process, usually (and properly) slow and elaborate, the delay would be certain to be prolonged, and the change perhaps nearly impossible. Once something gets into the written Constitution of Canada or Australia, for example, it may be very hard to get it out even if it turns out to work badly.
I should emphasize that this closely reasoned statement against codification of the reserve powers was given by Dr Forsey on the assumption that the polity he had in mind when making it was a constitutional monarchy. Dr Forsey then examined some proposals for codification which were discussed at the Australian Constitutional Convention in 1985. This particular ‘Convention’ had been functioning since 1974 involving representatives of the Commonwealth and State governments and, at Gough Whitlam’s insistence, of local government. (Are those who are old enough to remember still able to recall our Great National Treasure’s obsession with local government?) This particular Convention was later sent packing by the then Commonwealth Attorney-General, Mr Lionel Bowen, and we were treated at his instigation to another extended constitutional seminar at exorbitant expense entitled ‘The Constitutional Commission’ under the chairmanship of the late Sir Maurice Byers. Dr Forsey’s analysis of the shortcomings of the proposals for the codification of the reserve powers adumbrated by the afore-mentioned Constitutional Convention should be placed in this context: that republicanism then was not even on the political agenda.
It must seem a trite point to make at this stage but even so I shall make it. Any head of state in an Australian republic will be a significantly different creature from Australia’s present constitutional head of state, the Governor-General. If the President in such a republic is in any way elected and the difference is only marginal when considering a President directly elected on a nation-wide constituency and one elected by a parliamentary-collegial system of the kind proposed and resoundingly defeated at the last referendum such a President will enjoy a broader mandate than any Prime Minister. If such a President is vested without qualification with the powers of the present Governor-General and enjoys a fixed term, which the Prime Minister does not, and perhaps some degree of security of tenure, which the Prime Minister does not, that President will have the scope to become an active player in the political hurly-burly and not merely be reduced to the status of a somewhat reluctant arbiter of last resort when the normal functioning of parliamentary government breaks down. Because of the revolutionary nature of this situation, it has come to be accepted that to overcome the risks inherent in it the discretionary powers of the head of state would ipso facto need to be codified with all the shortcomings that codification would entail. I could be mistaken but somehow I am not expecting any revival down to the last detail of the ARM model defeated at the last referendum. According to this model the President would enjoy even less security of tenure than the Governor-General could be said to enjoy at present, being liable to instant dismissal by the Prime Minister at the very time he signed the letter of dismissal, and the reserve powers would be made justiciable without codification thereby leaving it to the High Court to determine in the midst of a constitutional crisis just what the reserve powers amounted to at the time of the federation of the Australian colonies. Mr R.J. Ellicott QC suggested that the High Court in making such a determination could have been able to define the reserve powers out of existence. As I say I do not expect this attempt at evading the issue of codification to get a second airing. This means that the question whether or not to codify will assume an even greater importance in any future promotion of a republican prospectus than would be the case if we played safe and remained as we are a constitutional monarchy.


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