VOLUME 8
RESTRICTED
Extract from "Commonwealth and Colonial Law" by Sir Kenneth Roberts-Wray
ANNEX 11
THE ROYAL ASSENT, RESERVATION AND NON-DISALLOWANCE AND THE RULE OF REPUGNANCY
(see paras 8.2.4 and 8.2.8)
When a Bill has been passed by the legislative House or Houses of a Dependent Territory (DT), it is presented to the Officer Administering the Government (OAG) for assent. There are several courses open to him; the procedure depends upon the course which he adopts, and mistakes may give rise to serious difficulties.
1
He may assent to the Bill. Action in the UK is as follows:
If there is no objection, the OAG is informed that Her Majesty's power of disallowance will not be exercised or that Her Majesty will not be advised to exercise the power. There is a slight difference between the effect of these two forms of words. The former implies that Her Majesty, acting on advice, has decided that she will not disallow the law; whereas the latter may mean only that the Secretary of State will tender no advice to The Queen with respect to the power of disallowance. In theory, there is no reason why, after signification of non-disallowance, a law should not be disallowed. The latter form of words would make that easier than the former but it is unlikely that such a thing ever has been or would be done.
Signification of non-disallowance in some form or other is obviously convenient but it is not legally necessary except where a clause suspends the operation of the law until Her Majesty's Pleasure is signified.
Her Majesty can exercise her power of disallowance, in which case the OAG is informed accordingly. This is extremely rare.
If there are serious objections, then, assuming that the law is not disallowed forthwith, an opportunity may be afforded to the Territory to make the necessary amendments, the OAG being informed that, in the meantime, no advice will be tendered to Her Majesty. This of course, conveys a reminder that the power of disallowance may be exercised if the law is not amended.
If there are minor objections, non-disallowance may be signified but accompanied by suggestions for amendment.
2.
The OAG may refuse assent. This he is unlikely to do without consulting the Secretary of State. If, after the OAG had formally refused assent, it were desired that the Bill should become law, the safest course would be for it to be reintroduced in the legislature and passed again. It is questionable whether the OAG could lawfully change his mind, because the constitution usually provides that, when a Bill is presented to the OAG for assent, he may give assent or refuse assent to reserve the Bill; and having refused to assent, it would appear that he is functus officio.
October 1978
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