Date Published:
July 2007

L’Encyclopédie de l’histoire du Québec / The Quebec History Encyclopedia

Disallowance

Under English law, the Crown is an essential branch of the legislature, the royal assent being necessary before any bill passed by the houses of the legislature (or by one house, where the legislature is unicameral) becomes law. The royal assent is exercised by announcement in parliament by the sovereign personally or by his representative. Formerly the granting of assent lay in the personal discretion of the monarch, but in no instance in England has it been refused since 1707. Refusal of assent, except possibly in the unusual case of advice to this effect by responsible ministers, may now be regarded as obsolete in Great Britain. Discretion was, however, long preserved in the matter of colonial legislation as a means of imperial control. The practices of disallowance and reservation may be regarded as variants of the discretionary right to refuse consent. Disallowance when used with reference to colonial legislation means the annulment by the Crown of any act of a colonial legislature on the advice of its imperial ministers. In the Canadian federal system, provincial legislation may also be disallowed by the governor-general on the advice of his ministers. Disallowance is equivalent to repeal, since it takes effect on announcement, and not ab initio. Reservation means the withholding of assent by a governor-general or governor to a bill duly passed by the competent legislature "in order that Her Majesty's pleasure may be taken thereon" (Report of the Imperial Conference, 1929).

All three means of controlling legislation still survive in the Crown colonies, and in form at least in the case of some of the Dominions. The British North America Act, for example, provides that the governor-general shall declare "according to his discretion", and in accordance with the Act and Her Majesty's instructions, whether he assents to a bill or reserves it "for the signification of the Queen's pleasure". The Act also provides for the disallowance by the Queen in Council of any bill duly assented to by the governor-general within two years of receipt thereof by the secretary of state. Similar, although not identical, clauses appear in the constituent Acts of all the great Dominions, except that of the Irish Free State.

Refusal of assent by the governor-general has never been exercised, and it is now clearly obsolete, especially in view of the agreement of the Imperial Conference of 1926 "that the Governor-General of a Dominion is the representative of the Crown, holding in all essential respects the same position in relation to the administration of public affairs in the Dominion as is held by His Majesty the King in Great Britain". The situation of the provinces of Canada is, however, less clear, since as late as 1909 the lieutenant-governor of British Columbia refused assent in accordance with a message, which was in effect "instructions", from the secretary of state at Ottawa. It was intimated at the time that the ministers of British Columbia were agreeable to the refusal, but this was subsequently denied by the ministers. At any rate refusal of assent by the lieutenant-governor on his own discretion is obsolete, if indeed the right ever existed.

Disallowance of Dominion legislation.

This was resorted to on one occasion only, in 1873. It may be regarded as virtually obsolete in view of the Report of the Imperial Conferences of 1929 and 1930, to be discussed later.

Reservation.

Prior to 1878 the Governor's Instructions specified a long list of bills which must be reserved, and during the period 1867-78 some twenty-one bills were actually reserved under these instructions. As a result of the representations of Edward Blake, the Instructions were changed to omit all reference to classes of bills to be reserved, but the imperial government made it quite clear that it retained full right to instruct the governor to reserve any particular bills.

In addition to reservation under instructions, a number of imperial statutes required reservation on bills on particular subjects, notably the Merchant Shipping Act, 1894, and the Colonial Courts of Admiralty Act, 1890.

These strictures on Dominion legislation were long out of line with the growing autonomy of the Dominions. This was recognized by the "Balfour Report" on British Commonwealth relations in 1926. Accordingly a special conference of legal experts from the various member-states of the Commonwealth was called in 1929 to examine and report on the changes in constitutional law necessary to bring the law more in accord with the principle of equality of status. The report of this Conference, subsequently adopted by the Imperial Conference proper in 1930, agreed that reservation and disallowance could be abolished for any Dominion at the option of the Dominion concerned. If a Dominion could amend its own constituent Act, it might abolish disallowance and reservation as provided for in that Act. If it could not amend its constituent Act (as in the case of Canada), it could achieve abolition by requesting the passage of appropriate legislation by the imperial parliament. In the case of other imperial Acts, such as the Merchant Shipping Act, a Dominion has now full power of repeal or amendment as regards itself under the Statute of Westminster, 1931, which was passed in accordance with the recommendations of the Imperial Conferences of 1929 and 1930.

One instance of disallowance was, however, expressly reserved. Under the Colonial Stock Act, 1900, Dominion stocks or bonds were accorded the privilege of listing as trustee stocks in London, provided the Dominion concerned went on record as approving disallowance of Dominion legislation altering any of the provisions of the contract to the detriment of the stockholder. The Conference agreed that the abolition of the power of disallowance should not extend to such legislation affecting injuriously existing stocks or any future stocks listed under the Act.

Although the British North America Act has not yet been amended to remove the reservation and disallowance clauses, there is little doubt that both reservation and disallowance (except in the matter of trustee stocks as noted above) are now definitely obsolete. As the Balfour Report of 1926 states, "It would not be in accordant constitutional practice for advice to be tendered to His Majesty in any matter appertaining to the affairs of a Dominion against the view of the government of that Dominion."

Disallowance of Provincial Legislation.

Under the British North America Act the Governor-General-in-Council has an unqualified power to disallow any provincial legislation within one year after assent by the lieutenant-governor of the province. The reasons for this provision are rather obscure, but it was in keeping with the evident intention of the framers of the Act that the provinces should be subordinate to the Dominion. Until 1894 disallowance of provincial legislation was frequently exercised, and on various grounds, but particularly on the ground of protecting rights of private property. Thus among the objections against Acts disallowed were: "flagrant violation of private rights and natural justice", "violation of contracts without compensation", and "insufficient compensation for the infringement of the rights of property". Other Acts were disallowed on the ground that they were ultra vires the provincial legislature.

As the position of the provinces came to be strengthened by various judicial decisions and by the growth of agitation for "provincial rights", a change in policy as respects disallowance, developed. The change is most noticeable from the entry to office in 1896 of the Liberal party, which had championed provincial rights. Sir Oliver Mowat, the Hon. David Mills, and Sir Allen Aylesworth, as ministers of justice, in turn refused to disallow provincial legislation on the grounds of injustice, or oppression, or its conflict with recognized legal principles. Sir Allen Aylesworth's view of disallowance indicates a theory of federation radically different from that of the early period. He argued that the provincial legislature within its proper field of jurisdiction was on a footing of equality with the parliament of Canada within its field, that the remedy for unsound or unjust legislation lay with the people of the province rather than with the federal government, and that disallowance should be confined to legislation deemed ultra vises. Three later cases, all before 1924, have, however, revived the earlier doctrine that the Dominion is responsible for disallowing provincial legislation morally unjust or legally unsound. The latest case, that of a Nova Scotia statute of 1923, deserves special notice because disallowance was exercised after the government of the province had intimated it had no objection to disallowance because the Act arose as a private member's bill and not as a government measure. The incident is also noteworthy because it arose under a Liberal federal régime, whereas in earlier Liberal régimes a policy of non-intervention in provincial legislation had been followed. The reasons announced for disallowance in this instance were that the provincial Act interfered with vested rights of property, and that it sought to reestablish a claim to the ownership of property contrary to the decision of the Supreme Court of the province upheld by the Supreme Court of Canada.

Despite this incident, disallowance now seems to be falling into disuse, though it would be a mistake to characterize it as obsolete. The reasons for disuse are twofold: in the first place, decision as to the legal validity of a statute is better left to the courts; and secondly, in the case of legislation intra vises, but unsound or unjust, decision lies more appropriately with the people of the province through the electoral system. Thus, whatever the intentions of the framers of the British North America Act, the power of disallowance is ceasing to be an effective means of censorship of provincial legislation by the Dominion.

For "imperial" reservation and disallowance, consult: A. B. Keith, Responsible government in the Dominions (2nd ed., London, 1928), A. B. Keith, Constitutional law of the British Dominions (London, 1933), and the Report of the Imperial Conference on the Operation of Dominion Legislation and Merchant Shipping Legislation, 1929, or The Imperial Conference, 1930: Summary of Proceedings. For disallowance of provincial legislatures, consult: W. P. M. Kennedy, Essays in constitutional law, Essay iii (London, 1934), and The constitution of Canada (London, 1922).

[For a further discussion of disallowance and reservation of provincial legislation, consult the relevant page in the constitutional section of the site.]

Source: W. Stewart WALLACE, The Encyclopedia of Canada, Vol. II, Toronto, University Associates of Canada, 1948, 411p., pp. 210-213.