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An Order in Council
Council
is a type of legislation in many countries, especially the Commonwealth realms. In the United Kingdom
United Kingdom
this legislation is formally made in the name of the Queen by and with the advice and consent of the Privy Council
Council
(Queen-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
Council
without royal assent.

Contents

1 Assent 2 Types, usage and terminology

2.1 Prerogative orders 2.2 As statutory instruments

3 Controversial uses

3.1 Canada 3.2 United Kingdom

4 See also 5 References 6 External links

Assent[edit] Although the Orders are officially 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 Council) reads out batches of Orders in Council drafted by the government in front of the Queen, who, after each order, says "Approved". They then come into effect. Types, usage and terminology[edit] Two principal types of Order in Council
Council
exist: Orders in Council whereby the Queen-in-Council
Queen-in-Council
exercises the Royal Prerogative, and Orders in Council
Council
made in accordance with an Act of Parliament.[1] In the United Kingdom
United Kingdom
orders are formally made in the name of the Queen by the Privy Council
Council
(Queen-in-Council). In Canada they are made in the name of the Governor General by the Queen's Privy Council
Council
for Canada (or in the case of provincial orders-in-council, orders are by the Lieutenant-Governor-in-Council) and in other places in name of the governor by the Executive Council
Council
(Governor-in-Council, Governor-General-in- Council
Council
etc.) In New Zealand, the Orders in Council
Council
are required to give effect to the Government's decisions. Apart from Acts of parliament, Orders in Council
Council
are the main method by which the government implements decisions that need legal force. Prerogative orders[edit] An Order in Council
Council
made under the Royal Prerogative is primary legislation, and does not depend on any statute for its authority, although an Act of Parliament
Act of Parliament
may change this.[2] 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
and dealing with international relations. Traditionally, Orders in Council
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[3][4] 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, in the UK, this power was later superseded by a statutory power to make such Orders in Council
Council
under the Civil Contingencies Act. British Orders in Council
Council
may occasionally be used to effectively reverse court decisions applicable to British Overseas Territories without involving Parliament. Within the United Kingdom
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. As statutory instruments[edit] In this second case, an Order in Council
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
Council
tends to be reserved for the most important pieces of subordinate legislation, and its use is likely to become more common.[citation needed] 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
House of Commons
in the UK and Canada or House of Representatives in the other realms), or the upper House ( House of Lords
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
Council
has been extended recently, as the Scotland Act 1998
Scotland Act 1998
provides that draft Orders in Council
Council
may be laid before the Scottish Parliament
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
Council
after following the affirmative resolution procedure. An Order in Council
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 most of the period from 1972 to 2007, much Northern Ireland legislation was made by Order-in- Council
Council
as part of direct rule. This was done under the various Northern Ireland
Northern Ireland
Acts 1974 to 2000, and not by virtue of the Royal Prerogative. Under the Government of Wales Act 2006, the 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.[5] Controversial uses[edit] Canada[edit] See also: Canadian passport § Refusal and revocation of passports After the British Empire entered World War I
World War I
on the Allied side, an Order in Council
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.[6] An Order in Council
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.[7] In July 2004 and August 30, 2006, Orders in Council
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
United States
at Guantanamo Bay. United Kingdom[edit] Orders in Council
Council
were controversially used in 2004 to overturn a court ruling in the United Kingdom,[citation needed] which held that the exile of the Chagossians
Chagossians
from the British Indian Ocean Territory (BIOT) was unlawful. However, the High Court in 2006 held that these Orders in Council
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."[8] 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".[9] However, the government successfully appealed to the Appellate Committee of the House of Lords who overturned the High Court and Court of Appeal decisions.[10] The House of Lords
House of Lords
decided[11] 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). 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
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
Chagossians
in the Chagos Islands. See also[edit]

Delegated legislation Executive order (United States), an order by the President of the United States
United States
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
US Constitution
reserves all federal legislative authority to the United States
United States
Congress except for the Presidential veto and even that can be overridden by Congress.

References[edit]

^ "Draft Cabinet Manual, para 32" (PDF). Cabinet Office. December 2010. Archived from the original (PDF) on 26 April 2012. Retrieved 31 December 2010.  ^ Council
Council
of Civil Service Unions v. Minister for the Civil Service [1985] 374 at 399, per Lord Fraser of Tullybelton ^ Home defence and emergency planning 1972–2001 (PDF), The National Archives, November 2005, p. 11, retrieved 2008-11-20  ^ Historical use: see Orders in Council
Council
(1807) ^ For example, the Order approving the NHS Redress (Wales) Measure 2008 ^ Luciuk, Lubomyr; A Time for Atonement; The Limestone Press, 1988 ^ Newman, Peter C. (July 30, 1990). "The brash new kid on the block. ( American Express
American Express
Co. opens Amex Bank of Canada amid controversy)"(column). Maclean's, July 30, 1990 v103 n31 p33(1) ^ Britain shamed as exiles of the Chagos Islands win the right to go home, Neil Tweedie, The Daily Telegraph, 12 May 2006. URL accessed 17 December 2006. ^ Chagos families win legal battle, BBC, 23 May 2007 ^ BBC
BBC
News: Chagos exiles ruling overturned 22 October 2008 ^ R (Bancoult) v Secretary of State For Foreign and Commonwealth Affairs [2008] UKHL 61

External links[edit]

Wikisource
Wikisource
has original text related to this article: Canadian Orders-in-Council

Orders in Council:

UK made since October 2000.

Northern Ireland

Canada 1867–1910.

Alberta British Columbia Manitoba Nova Scotia Saskatchewan

Queen's University: Orders-in- Council
Council
– An Overview

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