Order in Council
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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 European mainland, continental mainland. It comprises England, Scotlan ...
this legislation is formally made in the name of the monarch by and with the advice and consent of the
Privy Council A privy council is a body that advice (constitutional), advises the head of state of a State (polity), state, typically, but not always, in the context of a monarchy, monarchic government. The word "privy" means "private" or "secret"; thus, a pr ...
('' King-in-Council''), 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 (legal system), civil law jurisdictions possessing a monarchy, as belonging to the monarch, sovereign and whic ...
, 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 legislative body of a jurisdiction (often a parliament or council). In most countries with a parliamentary system of government, acts of parliame ...
. In the United Kingdom, orders are formally made in the name of the monarch by the
Privy Council A privy council is a body that advice (constitutional), advises the head of state of a State (polity), state, typically, but not always, in the context of a monarchy, monarchic government. The word "privy" means "private" or "secret"; thus, a pr ...
('' King-in-Council or Queen-in-Council''). In Canada, federal Orders in Council are made in the name of the Governor General by the King's Privy Council for Canada; 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 legislative and executive branches of governments in representative dem ...
and does not depend on any
statute A statute is a formal written enactment of a legislature, legislative authority that governs the legal entities of a city, State (polity), state, or country by way of consent. Typically, statutes command or prohibit something, or declare Public p ...
for its authority, although an Act of Parliament may change this.''Council of Civil Service Unions v. Minister for the Civil Service'' 985374 at 399, per Lord Fraser of Tullybelton 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 corporations, governance of
British Overseas Territories The British Overseas Territories (BOTs), also known as the United Kingdom Overseas Territories (UKOTs), are fourteen territories with a constitutional and historical link with the United Kingdom The United Kingdom of Great Britain ...
, making appointments in the
Church of England The Church of England (C of E) is the State religion, established List of Christian denominations, Christian church in England and the mother church of the international Anglican Communion. It traces its history to the Christian church record ...
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 (government), cabinet and the leader of the Minister (government), ministers in the Executive (government), executive branch of government, often in a parliamentary syst ...
to make political appointments, but they can also be used to issue simple laws as a sort of
decree A decree is a law, legal proclamation, usually issued by a head of state (such as the President (government title), president of a republic or a monarch), according to certain procedures (usually established in a constitution). It has the force of ...
. 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) 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. 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 Adjudication, adjudicate legal disputes between Party (law), parties and carry out the administration of justice in Civil law (common law), civil, C ...
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
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 ...
. 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'', 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 legislation, delegated or secondary legislation in the United Kingdom. National governmen ...
(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. T ...
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 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: "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 dialect, Ulster-Scots, Norlin Airlann) is a part of the United Kingdom, situated in the north-east of the island of Ireland, that is #Descriptions, variously described as ...
legislation was made by Order-in-Council as part of direct rule. This was done under the various Northern Ireland Acts 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 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 language, English and () in Welsh language, Welsh, is the Devolution in the United Kingdom, devolved, unicameral legislature of Wales. A democratically elected body, it makes ...
(Welsh Parliament; ) in 2020, at the same time gaining the competence to pass Acts of Senedd Cymru, assent to which is given by
letters patent Letters patent ( la, litterae patentes) (plurale tantum, always in the plural) are a type of legal instrument in the form of a published written order issued by a monarch, President (government title), president or other head of state, genera ...
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 List of wars and anthropogenic disasters by death toll, one of the deadliest global conflicts in history. Belligerents included much of Europe, the Russian Empire, ...
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.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, 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 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 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
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 European mainland, continental mainland. It comprises England, Scotlan ...

R (Bancoult) v Secretary of State For Foreign and Commonwealth Affairs
' 008UKHL 61
that held that the
exile Exile is primarily penal expulsion from one's native country A country is a distinct part of the world, such as a state (polity), state, nation, or other polity, political entity. It may be a sovereign state or make up one part of a la ...
of the Chagossians from the
British Indian Ocean Territory The British Indian Ocean Territory (BIOT) is an British Overseas Territories, Overseas Territory of the United Kingdom situated in the Indian Ocean, halfway between Tanzania and Indonesia. The territory comprises the seven atolls of the Chago ...
(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' 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 fou ...
'', 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 Division (business), business division of the BBC, 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 t ...
, 23 May 2007
However, the government successfully appealed to the
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 ...
, 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
.
BBC News BBC News is an operational Division (business), business division of the BBC, 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 t ...
, 22 October 2008
The Law Lords 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 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 Chagossians in the Chagos Islands.


See also

* Delegated legislation *
Executive order (United States) In the United States, an executive order is a presidential directive, directive by the president of the United States that manages operations of the Federal government of the United States, federal government. The legal or constitutional ba ...


References


External links

* Orders in Council: *
UK
made since October 2000. **
Northern Ireland
*

1867–1910. **
Alberta
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British Columbia
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Manitoba
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Nova Scotia
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Saskatchewan

Queen's University: [Canadian] Orders-in-Council – An Overview
{{DEFAULTSORT:Order-In-Council Canadian administrative law United Kingdom administrative law Westminster system de:Kabinettsorder