Order-in-Council
Encyclopedia
An Order in Council is a type of legislation in many countries, typically those in the Commonwealth of Nations
. In the United Kingdom
this legislation is formally made in the name of the Queen by the Privy Council
(Queen-in-Council
), but in other countries the terminology may vary.
) reads out batches of Orders in Council drafted by the government in front of the Queen, who, after every couple of orders, says 'Approved'. They then pass into law, and come into effect. However several instances have been recorded where a governor has questioned the technical basis of a proposed regulation
, refused assent, and the order has been returned to the relevant department
for revision.
, and Orders in Council made in accordance with an Act of Parliament
.
In the United Kingdom
orders are formally made in the name of the Queen by the Privy Council
(Queen-in-Council
). In Canada they are made in the name of the Governor General
by the Queen's Privy Council for Canada
and in other places in name of the governor by the Executive Council
(Governor-in-Council, Governor-General-in-Council etc.)
In New Zealand, the Orders in Council are required to give effect to the Government’s decisions. Apart from Acts of parliament, Orders in Council are the main method by which the government implements decisions that need legal force.
, and does not depend on any statute
for its authority, although it may be overridden by an Act of Parliament. This type has become less common with the passage of time, as statutes encroach on areas which used to form part of the Royal Prerogative.
Matters which still fall within the Royal Prerogative, and hence are regulated by (Prerogative) Orders in Council, include dealing with servants of the Crown, such as the standing orders for civil servants, appointing heads of Crown corporations, governance of British Overseas Territories, making appointments in the Church of England
and dealing with international relations.
Traditionally, Orders in Council are used as a way for the Prime Minister
to make political appointments, but they can also be used to issue simple laws as a sort of decree
. Often in times of emergency, a government may issue legislation directly through Orders in Council, forgoing the usual parliamentary procedure though most Orders of this sort are eventually formalized according to the traditional lawmaking process, if they are not revoked at the end of the emergency. However this power was later superseded by a statutory power to make such Orders in Council under the Civil Contingencies Act.
British Orders in Council may occasionally be used to effectively reverse court
decisions applicable to British Overseas Territories without involving Parliament
. Within the United Kingdom itself, court decisions can be formally overruled only by an Act of Parliament, or by the decision of a higher court on appeal.
In the rest of the Commonwealth they are used to carry out any decisions made by the Cabinet
and the executive that would not need to be approved by Parliament
.
in the UK and Canada or House of Representatives in the other realms), or the upper House (House of Lords
in the UK or Senate in other realms) ('negative resolution procedure'), or require to be approved by a resolution of either House, or, exceptionally, both ('affirmative resolution procedure'). That said, the use of Orders in Council has been extended recently, as the Scotland Act 1998
provides that draft Orders in Council may be laid before the Scottish Parliament
in certain circumstances in the same way as they would have been laid before the Westminster Parliament. From 2007, legislation put before the Welsh Assembly will be enacted through Orders in Council after following the affirmative resolution procedure.
An Order in Council of this type usually has the following form: "Her Majesty, in pursuance of[relevant section of primary legislation] , is pleased, by and with the advice of Her Privy Council, to order, and it is hereby ordered, as follows:"
For much of the period from 1972 to 2007 much Northern Ireland
legislation was made by Order-in-Council. This was done under the various Northern Ireland Act
s 1974 to 2000, and not by virtue of the Royal Prerogative.
Under the Government of Wales Act 2006
, Royal Assent
to Measures of the National Assembly for Wales is given by Order-in-Council, but this is not done by Statutory Instrument but in a form similar to that of a prerogative Order.
After the British Empire entered World War I
on the Allied side, an Order in Council was made in Canada for the registration, and in certain cases for the internment, of aliens
of "enemy nationality". Between 1914 and 1920, 8,579 "enemy aliens" were detained in internment camps.
An Order in Council made by the Brian Mulroney government on 21 November 1988 created AMEX Bank of Canada, a Canadian banking subsidiary of American Express
, although federal banking policy at the time would not ordinarily have permitted such an establishment by a foreign company.
In July 2004 and August 30, 2006, Orders in Council were used to deny a passport to Abdurahman Khadr
, a member of the infamous Khadr family
, and who had previously been held in detention by the United States
at Guantanamo Bay
.
which held that the exile
of the Chagossian islanders from the British Indian Ocean Territory
(BIOT) was unlawful. However, the High Court
, in 2006, held that these Orders in Council were unlawful, saying "The suggestion that a minister can, through the means of an order in council, exile a whole population from a British Overseas Territory and claim that he is doing so for the 'peace, order and good government
' of the territory is to us repugnant." The UK government's appeal failed, with the Court of Appeal
holding that the decision had been unlawfully taken by a government minister "acting without any constraint". However the government successfully appealed to the Appellate Committee of the House of Lords who overturned the High Court and Court of Appeal decisions. The House of Lords decided that the validity of an order in council made under the prerogative legislating for a colony was amenable to judicial review (see paragraph 35 of the decision). Further that it was not for the courts to substitute their judgement for that of the Secretary of State as to what was conducive to the peace, order and good government of BIOT. Nor were the orders Wednesbury unreasonable on the facts given the considerations of security and cost of resettlement. Further, none of the orders were open to challenge in the British
courts on the ground of repugnancy to any fundamental principle relating to the rights of abode of the Chagossians in the Chagos Islands.
Commonwealth of Nations
The Commonwealth of Nations, normally referred to as the Commonwealth and formerly known as the British Commonwealth, is an intergovernmental organisation of fifty-four independent member states...
. In the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
this legislation is formally made in the name of the Queen by the Privy Council
Privy Council of the United Kingdom
Her Majesty's Most Honourable Privy Council, usually known simply as the Privy Council, is a formal body of advisers to the Sovereign in the United Kingdom...
(Queen-in-Council
Queen-in-Council
The Queen-in-Council is, in each of the Commonwealth realms, the technical term of constitutional law that refers to the exercise of executive authority, denoting the monarch acting by and with the advice and consent of his or her privy council or executive council The Queen-in-Council (during...
), but in other countries the terminology may vary.
Assent
Although the Orders are nominally made by the Queen, in practice, royal assent is a formality only. What actually happens is that a representative of the government (generally a cabinet minister or the Lord President of the CouncilLord President of the Council
The Lord President of the Council is the fourth of the Great Officers of State of the United Kingdom, ranking beneath the Lord High Treasurer and above the Lord Privy Seal. The Lord President usually attends each meeting of the Privy Council, presenting business for the monarch's approval...
) reads out batches of Orders in Council drafted by the government in front of the Queen, who, after every couple of orders, says 'Approved'. They then pass into law, and come into effect. However several instances have been recorded where a governor has questioned the technical basis of a proposed regulation
Regulation
Regulation is administrative legislation that constitutes or constrains rights and allocates responsibilities. It can be distinguished from primary legislation on the one hand and judge-made law on the other...
, refused assent, and the order has been returned to the relevant department
Ministry (government department)
A ministry is a specialised organisation responsible for a sector of government public administration, sometimes led by a minister or a senior public servant, that can have responsibility for one or more departments, agencies, bureaus, commissions or other smaller executive, advisory, managerial or...
for revision.
Types, usage and terminology
Two principal types of Order in Council exist: Orders in Council whereby the Queen-in-Council exercises the Royal PrerogativeRoyal Prerogative
The royal prerogative is a body of customary authority, privilege, and immunity, recognized in common law and, sometimes, in civil law jurisdictions possessing a monarchy as belonging to the sovereign alone. It is the means by which some of the executive powers of government, possessed by and...
, and Orders in Council made in accordance with an Act of Parliament
Act of Parliament
An Act of Parliament is a statute enacted as primary legislation by a national or sub-national parliament. In the Republic of Ireland the term Act of the Oireachtas is used, and in the United States the term Act of Congress is used.In Commonwealth countries, the term is used both in a narrow...
.
In the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
orders are formally made in the name of the Queen by the Privy Council
Privy Council of the United Kingdom
Her Majesty's Most Honourable Privy Council, usually known simply as the Privy Council, is a formal body of advisers to the Sovereign in the United Kingdom...
(Queen-in-Council
Queen-in-Council
The Queen-in-Council is, in each of the Commonwealth realms, the technical term of constitutional law that refers to the exercise of executive authority, denoting the monarch acting by and with the advice and consent of his or her privy council or executive council The Queen-in-Council (during...
). In Canada they are made in the name of the Governor General
Governor General of Canada
The Governor General of Canada is the federal viceregal representative of the Canadian monarch, Queen Elizabeth II...
by the Queen's Privy Council for Canada
Queen's Privy Council for Canada
The Queen's Privy Council for Canada ), sometimes called Her Majesty's Privy Council for Canada or simply the Privy Council, is the full group of personal consultants to the monarch of Canada on state and constitutional affairs, though responsible government requires the sovereign or her viceroy,...
and in other places in name of the governor by the Executive Council
Executive Council (Commonwealth countries)
An Executive Council in Commonwealth constitutional practice based on the Westminster system is a constitutional organ which exercises executive power and advises the governor or governor-general. Executive Councils often make decisions via Orders in Council.Executive Councillors are informally...
(Governor-in-Council, Governor-General-in-Council etc.)
In New Zealand, the Orders in Council are required to give effect to the Government’s decisions. Apart from Acts of parliament, Orders in Council are the main method by which the government implements decisions that need legal force.
Prerogative Orders
An Order in Council made under the Royal Prerogative is primary legislationPrimary legislation
Primary legislation is law made by the legislative branch of government. This contrasts with secondary legislation, which is usually made by the executive branch...
, and does not depend on any statute
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
for its authority, although it may be overridden by an Act of Parliament. This type has become less common with the passage of time, as statutes encroach on areas which used to form part of the Royal Prerogative.
Matters which still fall within the Royal Prerogative, and hence are regulated by (Prerogative) Orders in Council, include dealing with servants of the Crown, such as the standing orders for civil servants, appointing heads of Crown corporations, governance of British Overseas Territories, making appointments in the Church of England
Church of England
The Church of England is the officially established Christian church in England and the Mother Church of the worldwide Anglican Communion. The church considers itself within the tradition of Western Christianity and dates its formal establishment principally to the mission to England by St...
and dealing with international relations.
Traditionally, Orders in Council are used as a way for the Prime Minister
Prime minister
A prime minister is the most senior minister of cabinet in the executive branch of government in a parliamentary system. In many systems, the prime minister selects and may dismiss other members of the cabinet, and allocates posts to members within the government. In most systems, the prime...
to make political appointments, but they can also be used to issue simple laws as a sort of decree
Decree
A decree is a rule of law issued by a head of state , according to certain procedures . It has the force of law...
. Often in times of emergency, a government may issue legislation directly through Orders in Council, forgoing the usual parliamentary procedure though most Orders of this sort are eventually formalized according to the traditional lawmaking process, if they are not revoked at the end of the emergency. However this power was later superseded by a statutory power to make such Orders in Council under the Civil Contingencies Act.
British Orders in Council may occasionally be used to effectively reverse court
Courts of England and Wales
Her Majesty's Courts of Justice of England and Wales are the civil and criminal courts responsible for the administration of justice in England and Wales; they apply the law of England and Wales and are established under Acts of the Parliament of the United Kingdom.The United Kingdom does not have...
decisions applicable to British Overseas Territories without involving Parliament
Parliament of the United Kingdom
The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...
. Within the United Kingdom itself, court decisions can be formally overruled only by an Act of Parliament, or by the decision of a higher court on appeal.
In the rest of the Commonwealth they are used to carry out any decisions made by the Cabinet
Cabinet (government)
A Cabinet is a body of high ranking government officials, typically representing the executive branch. It can also sometimes be referred to as the Council of Ministers, an Executive Council, or an Executive Committee.- Overview :...
and the executive that would not need to be approved by Parliament
Parliament
A parliament is a legislature, especially in those countries whose system of government is based on the Westminster system modeled after that of the United Kingdom. The name is derived from the French , the action of parler : a parlement is a discussion. The term came to mean a meeting at which...
.
Orders in Council as Statutory Instruments
In this second case, an Order in Council is merely another form of Statutory Instrument (in the UK, regulated by the Statutory Instruments Act 1946), albeit subject to more formalities than a simple statutory instrument. This kind of Order in Council tends to be reserved for the most important pieces of subordinate legislation, and its use is likely to become more common. Like all statutory instruments, they may simply be required to be laid before both Houses of Parliament, or, they may be annulled in pursuance of a resolution of either the lower House (House of CommonsHouse of Commons
The House of Commons is the name of the elected lower house of the bicameral parliaments of the United Kingdom and Canada and historically was the name of the lower houses of Ireland and North Carolina...
in the UK and Canada or House of Representatives in the other realms), or the upper House (House of Lords
House of Lords
The House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....
in the UK or Senate in other realms) ('negative resolution procedure'), or require to be approved by a resolution of either House, or, exceptionally, both ('affirmative resolution procedure'). That said, the use of Orders in Council has been extended recently, as the Scotland Act 1998
Scotland Act 1998
The Scotland Act 1998 is an Act of the Parliament of the United Kingdom. It is the Act which established the devolved Scottish Parliament.The Act will be amended by the Scotland Bill 2011, if and when it receives royal assent.-History:...
provides that draft Orders in Council may be laid before the Scottish Parliament
Scottish Parliament
The Scottish Parliament is the devolved national, unicameral legislature of Scotland, located in the Holyrood area of the capital, Edinburgh. The Parliament, informally referred to as "Holyrood", is a democratically elected body comprising 129 members known as Members of the Scottish Parliament...
in certain circumstances in the same way as they would have been laid before the Westminster Parliament. From 2007, legislation put before the Welsh Assembly will be enacted through Orders in Council after following the affirmative resolution procedure.
An Order in Council of this type usually has the following form: "Her Majesty, in pursuance of
For much of the period from 1972 to 2007 much Northern Ireland
Northern Ireland
Northern Ireland is one of the four countries of the United Kingdom. Situated in the north-east of the island of Ireland, it shares a border with the Republic of Ireland to the south and west...
legislation was made by Order-in-Council. This was done under the various Northern Ireland Act
Northern Ireland Act
Northern Ireland Act is a stock short title used in the United Kingdom for legislation relating to Northern Ireland.-List:*The Northern Ireland Act 1974*The Northern Ireland Act 1998...
s 1974 to 2000, and not by virtue of the Royal Prerogative.
Under the Government of Wales Act 2006
Government of Wales Act 2006
The Government of Wales Act 2006 is an Act of the Parliament of the United Kingdom that reforms the National Assembly for Wales and allows further powers to be granted to it more easily...
, Royal Assent
Royal Assent
The granting of royal assent refers to the method by which any constitutional monarch formally approves and promulgates an act of his or her nation's parliament, thus making it a law...
to Measures of the National Assembly for Wales is given by Order-in-Council, but this is not done by Statutory Instrument but in a form similar to that of a prerogative Order.
Canada
Orders in Council were used to re-classify certain types of firearms as restricted or prohibited despite those firearms actually meeting the criteria for non-restricted status as per the Firearms Act.After the British Empire entered World War I
World War I
World War I , which was predominantly called the World War or the Great War from its occurrence until 1939, and the First World War or World War I thereafter, was a major war centred in Europe that began on 28 July 1914 and lasted until 11 November 1918...
on the Allied side, an Order in Council was made in Canada for the registration, and in certain cases for the internment, of aliens
Alien (law)
In law, an alien is a person in a country who is not a citizen of that country.-Categorization:Types of "alien" persons are:*An alien who is legally permitted to remain in a country which is foreign to him or her. On specified terms, this kind of alien may be called a legal alien of that country...
of "enemy nationality". Between 1914 and 1920, 8,579 "enemy aliens" were detained in internment camps.
An Order in Council made by the Brian Mulroney government on 21 November 1988 created AMEX Bank of Canada, a Canadian banking subsidiary of American Express
American Express
American Express Company or AmEx, is an American multinational financial services corporation headquartered in Three World Financial Center, Manhattan, New York City, New York, United States. Founded in 1850, it is one of the 30 components of the Dow Jones Industrial Average. The company is best...
, although federal banking policy at the time would not ordinarily have permitted such an establishment by a foreign company.
In July 2004 and August 30, 2006, Orders in Council were used to deny a passport to Abdurahman Khadr
Abdurahman Khadr
Abdurahman Khadr is the third child of the Egyptian Canadian Khadr family, and was held in extrajudicial detention in the United States Guantanamo Bay detainment camps, in Cuba, after being detained in Afghanistan under suspicion of connections to Al-Qaeda...
, a member of the infamous Khadr family
Khadr family
The Khadr family is a Canadian family noted for their ties to Osama bin Laden and alleged connections to al Qaeda. The family maintains that they have not broken any Canadian laws, and they have never been charged with any crimes by Canadian authorities.The Khadr family comprises:*The father,...
, and who had previously been held in detention by the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
at Guantanamo Bay
Guantanamo Bay detainment camp
The Guantanamo Bay detention camp is a detainment and interrogation facility of the United States located within Guantanamo Bay Naval Base, Cuba. The facility was established in 2002 by the Bush Administration to hold detainees from the war in Afghanistan and later Iraq...
.
United Kingdom
Orders in Council were controversially used in 2004 to overturn a court ruling in the United KingdomUnited Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
which held that the exile
Exile
Exile means to be away from one's home , while either being explicitly refused permission to return and/or being threatened with imprisonment or death upon return...
of the Chagossian islanders from the British Indian Ocean Territory
British Indian Ocean Territory
The British Indian Ocean Territory or Chagos Islands is an overseas territory of the United Kingdom situated in the Indian Ocean, halfway between Africa and Indonesia...
(BIOT) was unlawful. However, the High Court
High Court of Justice
The High Court of Justice is, together with the Court of Appeal and the Crown Court, one of the Senior Courts of England and Wales...
, in 2006, held that these Orders in Council were unlawful, saying "The suggestion that a minister can, through the means of an order in council, exile a whole population from a British Overseas Territory and claim that he is doing so for the 'peace, order and good government
Peace, order and good government
In many Commonwealth jurisdictions, the phrase "peace, order and good government" is an expression used in law to express the legitimate objects of legislative powers conferred by statute...
' of the territory is to us repugnant." The UK government's appeal failed, with the Court of Appeal
Court of Appeal of England and Wales
The Court of Appeal of England and Wales is the second most senior court in the English legal system, with only the Supreme Court of the United Kingdom above it...
holding that the decision had been unlawfully taken by a government minister "acting without any constraint". However the government successfully appealed to the Appellate Committee of the House of Lords who overturned the High Court and Court of Appeal decisions. The House of Lords decided that the validity of an order in council made under the prerogative legislating for a colony was amenable to judicial review (see paragraph 35 of the decision). Further that it was not for the courts to substitute their judgement for that of the Secretary of State as to what was conducive to the peace, order and good government of BIOT. Nor were the orders Wednesbury unreasonable on the facts given the considerations of security and cost of resettlement. Further, none of the orders were open to challenge in the British
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
courts on the ground of repugnancy to any fundamental principle relating to the rights of abode of the Chagossians in the Chagos Islands.
See also
- Delegated legislationDelegated legislationIn the United Kingdom, delegated legislation is legislation or law that is passed otherwise than in an Act of Parliament . Instead, an enabling Act confers a power to make delegated legislation on a Government Minister or another person or body...
- Executive order (United States), an order by the President of the United StatesPresident of the United StatesThe President of the United States of America is the head of state and head of government of the United States. The president leads the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces....
to officers and employees of the executive branch which is sometimes incorrectly considered equivalent to an Order-in-Council. In fact, Article, I of the US Constitution reserves all federal legislative authority to the United States CongressUnited States CongressThe United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
except for the Presidential veto and even that can be overridden by Congress.
External links
- Orders in Council:
- Queen's University: Orders-in-Council - An Overview