An Order-in-Council is a type of legislation in many countries, especially the

Commonwealth realm A Commonwealth realm is a sovereign state in the Commonwealth of Nations whose monarch and head of state is shared among the other realms. Each realm functions as an independent state, equal with the other realms and nations of the Commonwealt ...

s. In the

United Kingdom The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain, is a country in Europe, off the north-western coast of the continental mainland. It comprises England, Scotland, Wales and North ...

this legislation is formally made in the name of the monarch by and with the

advice Advice (noun) or advise (verb) may refer to: * Advice (opinion), an opinion or recommendation offered as a guide to action, conduct * Advice (constitutional law) a frequently binding instruction issued to a constitutional office-holder * Advice (p ...

and consent of the

Privy Council A privy council is a body that advises the head of state of a state, typically, but not always, in the context of a monarchic government. The word "privy" means "private" or "secret"; thus, a privy council was originally a committee of the mon ...

(''

King-in-Council The King-in-Council or the Queen-in-Council, depending on the gender of the reigning monarch, is a constitutional term in a number of states. In a general sense, it would mean the monarch exercising executive authority, usually in the form of ap ...

''), but in other countries the terminology may vary. The term should not be confused with Order of Council, which is made in the name of the Council without royal assent.

Types, usage and terminology

Two principal types of Order in Council exist: Orders in Council whereby the King-in-Council exercises the

royal 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 and which have become widely vested in th ...

, and Orders in Council made in accordance with an

Act of Parliament Acts of Parliament, sometimes referred to as primary legislation, are texts of law passed by the Legislature, legislative body of a jurisdiction (often a parliament or council). In most countries with a parliamentary system of government, acts of ...

. In the United Kingdom, orders are formally made in the name of the monarch by the

('' King-in-Council or Queen-in-Council''). In Canada, federal Orders in Council are made in the name of the

Governor General Governor-general (plural ''governors-general''), or governor general (plural ''governors general''), is the title of an office-holder. In the context of governors-general and former British colonies, governors-general are appointed as viceroy t ...

by the

King's Privy Council for Canada The 's Privy Council for Canada (french: Conseil privé du Roi pour le Canada),) during the reign of a queen. sometimes called Majesty's Privy Council for Canada or simply the Privy Council (PC), is the full group of personal consultants to the ...

; provincial Orders-in-Council are of the Lieutenant-Governor-in-Council by the provincial Executive Council. 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, undertaken by the Executive 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 legislation Primary legislation and secondary legislation (the latter also called delegated legislation or subordinate legislation) are two forms of law, created respectively by the legislature, legislative and executive (government), executive branches of ...

and does not depend on any

statute A statute is a formal written enactment of a legislative authority that governs the legal entities of a city, state, or country by way of consent. Typically, statutes command or prohibit something, or declare policy. Statutes are rules made by le ...

for its authority, although an Act of Parliament may change this.''Council of Civil Service Unions v. Minister for the Civil Service''

985 Year 985 ( CMLXXXV) was a common year starting on Thursday (link will display the full calendar) of the Julian calendar. Events By place Europe * Summer – Henry II (the Wrangler) is restored as duke of Bavaria by Empress Theoph ...

374 at 399, per

Lord Fraser of Tullybelton Walter Ian Reid Fraser, Baron Fraser of Tullybelton, (3 February 1911 – 17 February 1989) was a British judge. Life and career Ian Fraser was born in Glasgow on 3 February 1911, the only child of Alexander Reid Fraser, a Glasgow fur mer ...

This type has become less common with the passage of time, as statutes encroach on areas that 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 (e.g., standing orders for civil servants), appointing heads of

Crown corporation A state-owned enterprise (SOE) is a government entity which is established or nationalised by the ''national government'' or ''provincial government'' by an executive order or an act of legislation in order to earn profit for the governmen ...

s, governance of

British Overseas Territories The British Overseas Territories (BOTs), also known as the United Kingdom Overseas Territories (UKOTs), are fourteen dependent territory, territories with a constitutional and historical link with the United Kingdom. They are the last remna ...

, making appointments in the

Church of England The Church of England (C of E) is the established Christian church in England and the mother church of the international Anglican Communion. It traces its history to the Christian church recorded as existing in the Roman province of Britain ...

and dealing with international relations. Traditionally, Orders in Council are used as a way for the

prime minister A prime minister, premier or chief of cabinet is the head of the cabinet and the leader of the ministers in the executive branch of government, often in a parliamentary or semi-presidential system. Under those systems, a prime minister is not ...

to make political appointments, but they can also be used to issue simple laws as a sort of

decree A decree is a legal proclamation, usually issued by a head of state (such as the president of a republic or a monarch), according to certain procedures (usually established in a constitution). It has the force of law. The particular term used for ...

. In times of emergency, a government may issue legislation directly through Orders in Council, forgoing the usual parliamentary procedure.Historical use: see

Orders in Council (1807) These Orders in Council were a series of decrees, in the form of Orders in Council, made by the Privy Council of the United Kingdom in the course of the wars with Napoleonic France which instituted its policy of commercial warfare. The Orders a ...

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, in the UK, this power was later superseded by a statutory power to make such Orders in Council under the

Civil Contingencies Act 2004 The Civil Contingencies Act 2004 (c. 36) is an Act of the Parliament of the United Kingdom that makes provision about civil contingencies. It also replaces former Civil Defence and Emergency Powers legislation of the 20th century. Background to ...

. British Orders in Council may occasionally be used to effectively reverse

court A court is any person or institution, often as a government institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance ...

decisions applicable to British Overseas Territories without involving

Parliament In modern politics, and history, a parliament is a legislative body of government. Generally, a modern parliament has three functions: Representation (politics), representing the Election#Suffrage, electorate, making laws, and overseeing ...

. 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

. It was long thought that prerogative orders, being primary legislation, were not subject to Judicial review in English law, judicial review. This was reversed in the 1985 case ''

Council of Civil Service Unions v Minister for the Civil Service ''Council of Civil Service Unions v Minister for the Civil Service'' , or the GCHQ case, is a United Kingdom constitutional law and UK labour law case that held the royal prerogative was subject to judicial review. In 1984, by issuing an Order in ...

'', which however allowed for some exceptions, such as national security. A given prerogative order therefore may or may not be subject to judicial review, depending on its nature.

As statutory instruments

In this second case, an Order in Council is merely another form of

statutory instrument In many countries, a statutory instrument is a form of delegated legislation. United Kingdom Statutory instruments are the principal form of delegated or secondary legislation in the United Kingdom. National government 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; 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 Commons The House of Commons is the name for the elected lower house of the bicameral parliaments of the United Kingdom and Canada. In both of these countries, the Commons holds much more legislative power than the nominally upper house of parliament. ...

in the UK and Canada or House of Representatives in the other realms) or the upper House (

House of Lords The House of Lords, also known as the House of Peers, is the Bicameralism, upper house of the Parliament of the United Kingdom. Membership is by Life peer, appointment, Hereditary peer, heredity or Lords Spiritual, official function. Like the ...

in the UK or Senate in other realms) ('negative resolution procedure'), or require to be approved by a resolution of either or, exceptionally, both Houses ('affirmative resolution procedure'). That said, the use of Orders in Council has been extended recently, as the

Scotland Act 1998 The Scotland Act 1998 (c. 46) is an Act of the Parliament of the United Kingdom which legislated for the establishment of the devolved Scottish Parliament with tax varying powers and the Scottish Government (then Scottish Executive). It was on ...

provides that draft Orders in Council may be laid before the

Scottish Parliament The Scottish Parliament ( gd, Pàrlamaid na h-Alba ; sco, Scots Pairlament) is the devolved, unicameral legislature of Scotland. Located in the Holyrood area of the capital city, Edinburgh, it is frequently referred to by the metonym Holyro ...

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 The Senedd (; ), officially known as the Welsh Parliament in English and () in Welsh, is the devolved, unicameral legislature of Wales. A democratically elected body, it makes laws for Wales, agrees certain taxes and scrutinises the Welsh Gove ...

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: "His Majesty, in pursuance of elevant section of primary legislation/nowiki>, is pleased, by and with the advice of His Privy Council, to order, and it is hereby ordered, as follows:" For most of the period from 1972 to 2007, much

Northern Ireland Northern Ireland ( ga, Tuaisceart Éireann ; sco, label= Ulster-Scots, Norlin Airlann) is a part of the United Kingdom, situated in the north-east of the island of Ireland, that is variously described as a country, province or region. Nort ...

legislation was made by Order-in-Council as part of

direct rule Direct rule is when an imperial or central power takes direct control over the legislature, executive and civil administration of an otherwise largely self-governing territory. Examples Chechnya In 1991, Chechen separatists declared independence ...

. This was done under the various

Northern Ireland Act Northern Ireland Act (with its variations) is a stock short title used in the United Kingdom for legislation relating to Northern Ireland. List *The Northern Ireland (Emergency Provisions) Act 1973 *The Northern Ireland Act 1974 *The Northern Ire ...

s 1974 to 2000, and not by virtue of the royal prerogative. Under the

Government of Wales Act 2006 The Government of Wales Act 2006 (c 32) is an Act of the Parliament of the United Kingdom that reformed the then-National Assembly for Wales (now the Senedd) and allows further powers to be granted to it more easily. The Act creates a system o ...

, royal assent to

Measures of the National Assembly for Wales A Measure of the National Assembly for Wales (informally, an Assembly Measure) is primary legislation in Wales that is a category lower than an Act of Parliament. In the case of contemporary Welsh law, the difference with Acts is that the comp ...

was given by Order-in-Council, but this is not done by statutory instrument but in a form similar to that of a prerogative order.For example, th
Order approving the NHS Redress (Wales) Measure 2008
/ref> The National Assembly became the

Senedd The Senedd (; ), officially known as the Welsh Parliament in English and () in Welsh, is the devolved, unicameral legislature of Wales. A democratically elected body, it makes laws for Wales, agrees certain taxes and scrutinises the Welsh Gove ...

(Welsh Parliament; ) in 2020, at the same time gaining the competence to pass

Acts of Senedd Cymru An Act of Senedd Cymru ( cy, Deddf gan Senedd Cymru), or informally an Act of the Senedd, is primary legislation that can be made by the Senedd (Welsh Parliament; ) under part 4 of the Government of Wales Act 2006 (as amended by the Wales Act ...

, assent to which is given by

letters patent Letters patent ( la, litterae patentes) ( always in the plural) are a type of legal instrument in the form of a published written order issued by a monarch, president or other head of state, generally granting an office, right, monopoly, titl ...

without requiring the involvement of the Privy Council.

Controversial uses

Canada

After the British Empire entered

World War I World War I (28 July 1914 11 November 1918), often abbreviated as WWI, was one of the deadliest global conflicts in history. Belligerents included much of Europe, the Russian Empire, the United States, and the Ottoman Empire, with fightin ...

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 primarily refers to: * Alien (law), a person in a country who is not a national of that country ** Enemy alien, the above in times of war * Extraterrestrial life, life which does not originate from Earth ** Specifically, intelligent extrate ...

of "enemy nationality". Between 1914 and 1920, 8,579 "enemy aliens" were detained in internment camps.Luciuk, Lubomyr (1998)
''A Time for Atonement''
The Limestone Press. 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 Company (Amex) is an American multinational corporation specialized in payment card services headquartered at 200 Vesey Street in the Battery Park City neighborhood of Lower Manhattan in New York City. The company was found ...

, although federal banking policy at the time would not ordinarily have permitted such an establishment by a foreign company.Newman, Peter C. (July 30, 1990). "The brash new kid on the block. (American Express Co. opens Amex Bank of Canada amid controversy)" (column). Maclean's, 30 July 1990 v103 n31 p33(1) In July 2004 and August 2006, Orders in Council were used to deny a passport to Abdurahman Khadr, a member of the

Khadr family The Khadr family ( ar, أسرة خضر) is an Egyptian-Canadian family noted for their ties to Osama bin Laden and connections to al-Qaeda.

who had previously been held in detention by the United States at Guantanamo Bay, on the grounds of national security. The first was overturned on judicial review by the Federal Court as, at the time of his application, national security was not included as a ground for refusal in the ''Canadian Passport Order'', which was since amended to include the ground. In July 2017, the government of Canada used an Order in Council to strip ex-Nazi interpreter

Helmut Oberlander Helmut Oberlander (15 February 1924 – 20 September 2021) was a naturalized Canadian citizen who was a member of the ''Einsatzgruppen'' death squads of Nazi Germany in the occupied Soviet Union during World War II. Oberlander was on the Simon W ...

of his Canadian citizenship. During the COVID-19 pandemic, the government of Canada used an ongoing Order in Council to limit foreign nationals from entering Canada from the United States and other countries. Additionally, an Order in Council was used to impose a mandatory 14-day quarantine upon some individuals entering Canada. On May 1, 2020, an Order in Council was used to declare over 1500 models of firearm to be prohibited weapons, in response to the 2020 Nova Scotia attacks. The order immediately nullified the existing registrations of ownership for all the weapons it affected, making it illegal for owners to possess, use, transport, or sell them except in a few limited circumstances. A second Order in Council was simultaneously passed declaring an amnesty period until April 30, 2022, in which time owners of newly-prohibited firearms could have them deactivated, destroyed, or exported to a country in which they could be legally owned.

United Kingdom

Orders in Council were controversially used in 2004 to overturn a court ruling in the

R (Bancoult) v Secretary of State For Foreign and Commonwealth Affairs
'

008 008, OO8, O08, or 0O8 may refer to: * The Streetwear Brand @008us , inspired by Ian Fleming & Virgil Abloh *"030", the fictional 030 Agent of MI6 * '' 038: Operation Exterminate'', a 1965 Italian action film * '' Explosivo 030'' a 1940 Argentine c ...

UKHL 61 that held that the

exile Exile is primarily penal expulsion from one's native country, and secondarily expatriation or prolonged absence from one's homeland under either the compulsion of circumstance or the rigors of some high purpose. Usually persons and peoples suf ...

of the

Chagossians The Chagossians (also Îlois or Chagos Islanders) are a currently exiled Creole ethnic group native to the Chagos Islands, specifically Diego Garcia, Peros Banhos, and the Salomon island chain, as well as other parts of the Chagos Archipelago ...

from the

British Indian Ocean Territory The British Indian Ocean Territory (BIOT) is an Overseas Territory of the United Kingdom situated in the Indian Ocean, halfway between Tanzania and Indonesia. The territory comprises the seven atolls of the Chagos Archipelago with over 1,000 ...

(BIOT) was unlawful. Initially, the High Court in 2006 held that these Orders in Council were unlawful: "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 In many Commonwealth jurisdictions, the phrase "peace, order, and good government" (POGG) is an expression used in law to express the legitimate objects of legislative powers conferred by statute. The phrase appears in many Imperial Acts of Pa ...

' of the territory is to us repugnant."Britain shamed as exiles of the Chagos Islands win the right to go home
, Neil Tweedie, ''

The Daily Telegraph ''The Daily Telegraph'', known online and elsewhere as ''The Telegraph'', is a national British daily broadsheet newspaper published in London by Telegraph Media Group and distributed across the United Kingdom and internationally. It was fo ...

'', 12 May 2006. Accessed 17 December 2006. The UK government's first appeal failed, with the

Court of Appeal A court of appeals, also called a court of appeal, appellate court, appeal court, court of second instance or second instance court, is any court of law that is empowered to hear an appeal of a trial court or other lower tribunal. In much of t ...

holding that the decision had been unlawfully taken by a government minister "acting without any constraint".Chagos families win legal battle
,

BBC News BBC News is an operational business division of the British Broadcasting Corporation (BBC) responsible for the gathering and broadcasting of news and current affairs in the UK and around the world. The department is the world's largest broadca ...

, 23 May 2007 However, the government successfully appealed to the

, which overturned the High Court and Court of Appeal decisions ('' R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Bancoult (No 2)'').Chagos exiles ruling overturned
.

, 22 October 2008 The

Law Lords Lords of Appeal in Ordinary, commonly known as Law Lords, were judges appointed under the Appellate Jurisdiction Act 1876 to the British House of Lords, as a committee of the House, effectively to exercise the judicial functions of the House of ...

decided that the validity of an order in council made under the prerogative legislating for a colony was amenable to judicial review.Note: see paragraph 35 of the decision Also, 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 the BIOT. The orders were not

Wednesbury unreasonable ''Associated Provincial Picture Houses Ltd. v Wednesbury Corporation'' 9481 KB 223 is an English law case that sets out the standard of unreasonableness of public-body decisions that would make them liable to be quashed on judicial review, known ...

on the facts, given the considerations of security and cost of resettlement. Finally, none of the orders was open to challenge in the British courts on the ground of repugnancy to any fundamental principle relating to the rights of abode of the

in the

Chagos Islands The Chagos Archipelago () or Chagos Islands (formerly the Bassas de Chagas, and later the Oil Islands) is a group of seven atolls comprising more than 60 islands in the Indian Ocean about 500 kilometres (310 mi) south of the Maldives arc ...

Types, usage and terminology

Prerogative orders

As statutory instruments

Controversial uses

Canada

United Kingdom

See also

References

External links