In the parliamentary systems of many countries, including most Commonwealth countries, parliament must be dissolved when an election is called. With the legislature no longer sitting, what happens if there is some sort of unexpected state emergency, such as a foreign power invading or declaring war? Who is then empowered to declare war, authorize the mobilization of the military, and sign treaties? Surely the country doesn’t have to wait for a month (or however long the campaign period is) before taking action, does it? Does the upper house (the Senate in Canada, or the House of Lords in the UK) take over the function of government until after the election? Or perhaps does the head of state (the Governor-General or the Monach) govern directly?
On a related note, has any country been attacked by a foreign power after dissolution of its parliament, in the hope that this would give them a strategic advantage?
This is where the separation of powers kicks in. (Contrary to some comments I’ve seen occasionally, it does in fact exist in parliamentary systems, just in a different form than in the Congressional system.)
The Prime Minister and the Cabinet continue to hold office pending the elections, since it is not a legal requirment that they be members of Parliament. Normally during an election their function is purely “housekeeping” - they only do what is absolutely necessary to keep the machinery of government turning over, but no major decisions, appointments, etc. They delegate most of the day-to-day functioning to the senior civil service. By convention, the Queen/Governor-General will not carry out any recommended action that goes beyond the housekeeping function.
However, in an emergency, the PM and Cabinet could act. They continue to have all the legal powers vested in them by law and could exercise those powers if needed. The Queen or the GovGen would likely examine any such exercise of powers very carefully, to be sure that there truly is an emergency warranting the action. As well, the PM may well consult with the opposition leaders to get them on-side.
In parliamentary systems modelled on the British government, all of these are executive functions and do not need approval from Parliament, as a legal pre-condition of their use. By convention, the PM and Cabinet always report to Parliament on these issues, but that’s not legally required.
So, bottom line - if Denmark had invaded Hans Island during the recent Canadian election, the government of Paul Martin would have had the legal and constitutional authority to take whatever action was necessary to defend our sovereignty.
In his History of World War II, Churchill mentions honoring the U.K.'s promise to the U.S. to declare war on Japan if the latter attacked the U.S., and beating the U.S. to the punch, so to speak, since it is the Royal Prerogative, exercised through his/her ministers, to declare war in Britain and the Commonwealth, as opposed to the declaration of war from Congress required by the U.S. Constitution.
All these powers – declaring war, mobilizing troops, and making treaties – are powers that the head of state exercises even when the parliament is in session. (At least in theory, that is. In practice, the government exercises these powers in the name of the head of state.) In the British system, for example, only the Crown can declare and make war, the Sovereign is the commander in chief of the armed forces, and the Sovereign treats with foreign powers. (Take a look, for example, at the enacting clause of any of the treaties establishing the European Union – the treaties aren’t made in the name of the nation or its people, but rather in the name of the Sovereign. Even the republics, where the sovereign is the people, are listed only by the title of the head of state.) The notion of the legislature’s involvement in declaring war or in treaty-making was an innovation when it was incorporated into the U.S. Constitution.
Here’s the passage from Churchill that Polycarp referred to:
Although the consent of Parliament is not necessary for a declaration of war, if the House of Commons had not voted in favour, that would likely have been considered a confidence matter, leading to a change of government.
The Canadian government followed a similar pattern with the original declaration of war on Germany in 1939: a decision by the Canadian Cabinet to issue a declaration of war, followed by a debate in the House of Commons, which approved the measure.
It’s my favourite Churchillian quotation, and provides a valuable insight into the mind-set and values of some English of that period.
I meant to post it to that thread a few weeks ago about Canadians and politeness - several posters commented that it’s a mistake to confuse politeness with kindness - this is the ultimate comment supporting that distinction.