Advice, in constitutional law, is formal, usually binding, instruction given by one constitutional officer of state to another. Especially in parliamentary systems of government, Heads of state often act on the basis of advice1 issued by prime ministers or other government ministers. For example, the monarch of Belgium formally appoints Ministers of the Crown on the advice of his or her prime minister.
Among the most prominent forms of advice offered are:
- Advice to appoint and remove individual ministers.
- Advice to dissolve parliament.
- Advice to deliver formal statements, such as a Speech from the throne.
In some states, the duty to accept advice is legally enforceable, having been created by a constitution or statute. For example, the Basic Law of Germany requires the President to appoint federal ministers on the advice of the Chancellor. In others, especially under the Westminster system, advice may legally be rejected; for example, in several Commonwealth realms, the Queen is not legally obliged to accept the advice of her ministers; this lack of obligation forms part of the basis for the reserve powers. Nevertheless, the convention that the head of state accept ministerial advice is so strong that in ordinary circumstances, refusal to do so would almost certainly provoke a constitutional crisis.
Although most advice is binding, in comparatively rare instances, it is not. For example, many heads of state may choose not to follow advice on a dissolution of parliament where the government has lost the confidence of that body. In some cases, whether the advice is mandatory or truly just advisory depends on the context and authority of the person offering it. Hence the President of Ireland ordinarily is obliged to dissolve Dáil Éireann (the House of Representatives) when advised to do so by the Taoiseach (prime minister). However, where a taoiseach has (in the words of the Constitution of Ireland) "ceased to retain the support of a majority in Dáil Éireann" (i.e., lost the confidence of parliament) the President has the option of refusing to follow that advice.2
- advice and consent
- King-Byng Affair
- Constitutional economics
- Rule according to higher law
- Some constitutional writers, though not all, capitalise the word to indicate that it refers not merely to an informal suggestion but to a formal constitutional instruction, which, in most cases, must be followed.citation needed
- Article 13.2.2. of Constitution of Ireland (1937)