CONTROL OF LOCAL LEGISLATION

One of the most important branches of my subject is the means by which control is exercised over legislation made in dependent territories and I wish I had more space to discuss it.

The official majority in the legislature need not detain me for it is

* Phillips v Eyre (1870) L.R., 6 Q.B. 1.

almost as dead as the dodo. The Royal assent can, of course, be withheld by a Governor, acting on instructions or otherwise; and if he has assented, then the law can be disallowed provided the power has not been deliberately abandoned. I am careful not to say provided it is expressly conferred, because the power of disallowance exists at common law whether it is reserved or not, a fact which has not always been appreciated. In recent years, however, resort has rarely been had to either the so-called ‘veto’ or the power of disallowance.

Not so much in danger of becoming rusty from disuse is the reservation of Bills for Her Majesty’s pleasure, because constitutional instruments still regularly require Bills of certain kinds to be reserved. It is, I think, worth while to mention the danger of confusion in procedure between disallowance and reserved Bills. Only a law can be disallowed; a Bill cannot. A reserved Bill, if it is to become a law, must receive the Queen’s assent. I should not be greatly surprised if some­one were to discover a Bill reserved for Her Majesty’s pleasure which everyone thought had been satisfactorily converted into a law by signification that it was Her Majesty’s pleasure not to disallow it. If that has happened, then the document is not a law, for no one has assented. As the Bill has been reserved, the Governor has not given the Royal assent: nor has the Sovereign in merely deciding not to exercise a power which does not exist—power to disallow a Bill. Perhaps I am being too fanciful in imagining a Government administer­ing what they think is a law but which has no more effect in law than a piece of blank paper. I know that there has been this confusion, but I have no reason to think that it has ever led anyone right up the garden path.

Lastly, there is the Governor’s so-called reserved power, sometimes referred to as the power of ‘certification’—incorrectly, because there is no certificate. The Governor makes a declaration to the effect that, notwithstanding the rejection of a Bill by the local legislative House or Houses, it shall take effect as if they had passed it. This device was invented when unofficial majorities first superseded official majorities, and it is surprising how rarely in its lifetime of about 40 years it has been used. Does this demonstrate that the principal value of legal safeguards of this sort is that they encourage resort to compromise, mutual understanding and common sense in order to overcome differences of opinion?