Order in Council

An Order in Council is a type of legislation in many countries, especially the Commonwealth realms. It is similar to executive orders issued in presidential systems, but here the order is issued in the name of the sovereign. In the United Kingdom this legislation is formally made in the name of the monarch by and with the advice and consent of the Privy 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 without royal assent.

Not to be confused with Order of Council.

Types, usage and terminology

Two principal types of Order in Council exist: Orders in Council whereby the Queen-in-Council exercises the Royal Prerogative, and Orders in Council made in accordance with an Act of Parliament.[1]

In the United Kingdom, orders are formally made in the name of the Queen by the Privy Council (Queen-in-Council). In Canada, federal Orders in Council are made in the name of the Governor General by the Queen'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.[2]

Prerogative orders

An Order in Council made under the Royal Prerogative is primary legislation and does not depend on any statute for its authority, although an Act of Parliament may change this.[3] 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, 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. In times of emergency, a government may issue legislation directly through Orders in Council, forgoing the usual parliamentary procedure.[4][5] 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.

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.

It was long thought that prerogative orders, being primary legislation, were not subject to 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 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 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 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: "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 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, 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.[6]

Controversial uses

Canada
See also: Canadian passport § Refusal and revocation of passports

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.[7]

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.[8]

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[9] as, at the time of his application, national security was not included as a ground for refusal in the Canadian Passport Order,[10] which was since amended to include the ground.

On May 1, 2020, an Order in Council was used to ban 1500 models of firearms deemed military-grade "assault-style" firearms from licensed firearms owners, in response to the 2020 Nova Scotia attacks.[11]

United Kingdom

Orders in Council were controversially used in 2004 to overturn a court ruling in the United Kingdom[12] that held that the exile of the Chagossians from the British Indian Ocean Territory (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."[13] The UK government's first appeal failed, with the Court of Appeal holding that the decision had been unlawfully taken by a government minister "acting without any constraint".[14] However, the government successfully appealed to the Appellate Committee of the House of Lords, who overturned the High Court and Court of Appeal decisions (R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Bancoult (No 2)).[15] The Law Lords decided[12] 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 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.

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See also
  • Delegated legislation
  • Executive order (United States)

References
  1. "Draft Cabinet Manual, para 32" (PDF). Cabinet Office. December 2010. Archived from the original (PDF) on 26 April 2012. Retrieved 31 December 2010.
  2. "Orders in Council". Department of the Prime Minister and Cabinet. 19 February 2019. Retrieved 30 April 2020.
  3. Council of Civil Service Unions v. Minister for the Civil Service [1985] 374 at 399, per Lord Fraser of Tullybelton
  4. Home defence and emergency planning 1972–2001 (PDF), The National Archives, November 2005, p. 11, retrieved 20 November 2008
  5. Historical use: see Orders in Council (1807)
  6. For example, the Order approving the NHS Redress (Wales) Measure 2008
  7. Luciuk, Lubomyr (1998). A Time for Atonement. The Limestone Press.
  8. 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)
  9. Khadr v. Canada (Attorney General), 2006 F.C. 727, [2007] 2 F.C.R. 218.
  10. Canadian Passport Order SI/81-86.
  11. https://www.cbc.ca/news/politics/trudeau-gun-control-measures-ban-1.5552131
  12. R (Bancoult) v Secretary of State For Foreign and Commonwealth Affairs [2008] UKHL 61
  13. "Britain shamed as exiles of the Chagos Islands win the right to go home", Neil Tweedie, The Daily Telegraph, 12 May 2006. Accessed 17 December 2006.
  14. "Chagos families win legal battle", BBC News, 23 May 2007
  15. "Chagos exiles ruling overturned". BBC News, 22 October 2008
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