VOLUME 8
RESTRICTED
(ANNEX 11)
3.
He may reserve the Bill for Her Majesty's Pleasure. In that case, if assent is to be given, it must be given by The Queen herself, either by Order in Council if the constitution so requires, or simply through the Secretary of State. It is in respect of a reserved Bill that there is the greatest danger (if that is not too strong a word) of error. There are two possible mistakes which may be made:
This is not a case for signifying non-disallowance; only a law can be disallowed. A Bill to which the OAG has not assented is not, of course, a law and there is nothing to disallow. There may, however, be misunderstanding. In the normal case (ie when the OAG has assented to a Bill) signification of non-disallowance is an expression of Her Majesty's Pleasure and if the local Government were erroneously informed that the power of disallowance would not be exercised, they might accept that as a sufficient assurance of "Her Majesty's Pleasure", for which the Bill has been reserved, and proceed to treat the Bill as if it had become a law. This may be regarded as no more than a technicality, but if the error should be made and subsequently discovered, it is difficult to see how a Court, if called upon to consider the situation, could hold that a Bill which had never received the Royal Assent had ever had any legal effect.
It would be incorrect in this case for Her Majesty to be advised to instruct the OAG to assent. As a rule the constitution stipulates that, when a Bill is reserved for Her Majesty's assent, it shall come into force when she has given it, so that assent by the OAG, even in pursuance of Her Majesty's instructions, would probably be a nullity in Law.
4.
5.
6.
The OAG may ask for Her Majesty's instructions before giving his assent. This course would probably not be adopted except where a Bill falls within one of the classes of Bills which the OAG is directed (either by Royal Instructions or elsewhere in the constitution) to reserve for Her Majesty's Pleasure unless he has been instructed by Her Majesty to assent. If the OAG has withheld assent pending Her Majesty's Instructions and it is desired that the Bill should become law, he must be instructed to assent in Her Majesty's name. It would not be correct for Her Majesty to assent, though in law she probably has the power to do so. In theory, it appears that she could disallow an Ordinance to which the OAG has assented on her instructions, but the question seems clearly to be academic, except in the case mentioned in para 6 below.
He may defer his decision pending consultation with the Secretary of State. This is self-evident. The right to do so is not mentioned in the constitution; it is merely an exercise of the OAG's general discretion. It is referred to here merely to distinguish it from the more formal request for Her Majesty's instructions just mentioned.
Suspending clauses. The various possibilities so far discussed have to be borne in mind when drafting clauses to suspend the operation of laws pending consideration in the UK. The usual form provides that the law shall not take effect until Her Majesty's Pleasure is signified. This contemplates that the OAG will assent and that the Royal Pleasure will be signified by a notification that the power of disallowance will not be exercised; be it noted, that "Her Majesty will not be advised" to exercise the power, is an inappropriate form of words, for it
October 1978
105
RESTRICTED