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 that has the same constitutional monarch and head of state as the other realms. The current monarch is King Charles III. Except for the United Kingdom, in each of the re ...
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 Northwestern Europe, off the coast of European mainland, the 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 (''
King-in-Council''); however, in other countries, the terminology may vary. Orders-in-Council are distinct from
Orders of Council, which are made in the name of the Council without sovereign approval.
Types, usage and terminology
There are two principal types of order in council: orders in council whereby the King-in-Council exercises the
royal prerogative
The royal prerogative is a body of customary authority, Privilege (law), privilege, and immunity recognised in common law (and sometimes in Civil law (legal system), civil law jurisdictions possessing a monarchy) as belonging to the monarch, so ...
, and orders in council made in accordance with an
act of Parliament.
In the United Kingdom, orders are formally made by the monarch with the advice of the
Privy Council (''
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
The King's Privy Council for Canada (), sometimes called His Majesty's Privy Council for Canada or simply the Privy Council (PC), is the full group of personal advisors to the monarch of Canada on State (polity), state and constitutional affair ...
; 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 does not depend on any
statute
A statute is a law or formal written enactment of a legislature. Statutes typically declare, command or prohibit something. Statutes are distinguished from court law and unwritten law (also known as common law) in that they are the expressed wil ...
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 the prorogation of Parliament, royal charters, and the governance of
British Overseas Territories
The British Overseas Territories (BOTs) or alternatively referred to as the United Kingdom Overseas Territories (UKOTs) are the fourteen dependent territory, territories with a constitutional and historical link with the United Kingdom that, ...
.
British Orders in Council may occasionally be used to effectively reverse
court
A court is an institution, often a government entity, with the authority to adjudicate legal disputes between Party (law), parties and Administration of justice, administer justice in Civil law (common law), civil, Criminal law, criminal, an ...
decisions or enforce British law 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 ...
such as the
Caribbean Territories (Abolition of Death Penalty for Murder) Order 1991. 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 ''
'', 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.
Statutory orders
In this second case, an Order in Council is made under powers conferred by legislation and is normally subject to parliamentary procedure. In the UK, if the parent legislation was passed after 1 January 1948, when the
Statutory Instruments Act 1946
The Statutory Instruments Act 1946 ( 9 & 10 Geo. 6. c. 36) is an Act of the United Kingdom Parliament which governs the making of statutory instruments.
Until 2011 the act also governed Scottish statutory instruments made under acts of th ...
came into force, such orders in council are a form of
statutory instrument. 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 Bicameralism, 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 ...
in the UK and Canada or House of Representatives in the other realms) or the upper house (
House of Lords
The House of Lords is the upper house of the Parliament of the United Kingdom. Like the lower house, the House of Commons of the United Kingdom, House of Commons, it meets in the Palace of Westminster in London, England. One of the oldest ext ...
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 more 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 o ...
provides that draft Orders in Council may be laid before the
Scottish Parliament
The Scottish Parliament ( ; ) is the Devolution in the United Kingdom, devolved, unicameral legislature of Scotland. It is located in the Holyrood, Edinburgh, Holyrood area of Edinburgh, and is frequently referred to by the metonym 'Holyrood'. ...
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, Its role is to scrutinise the Welsh Government and legislate on devolve ...
is 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 is pleased, by and with the advice of His Privy Council, to order, and it is hereby ordered, as follows:"
Section 20(1) of the
Civil Contingencies Act 2004 allows the King in Council to exercise a measure of legislative power in the event of an emergency.
Other matters dealt with by statutory Orders in Council include the closure of burial grounds under the
Burial Act 1853, approval of statutes made by Oxford or Cambridge colleges under the
Universities of Oxford and Cambridge Act 1923, and the appointment of HM Inspectors of Education, Children's Services and Skills under the
Education and Inspections Act 2006. Statutory Orders in Council approving statutes made by Durham or Newcastle universities under the
Universities of Durham and Newcastle-upon-Tyne Act 1963 are specifically excluded from the provisions of the Statutory Instruments Act 1946.
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 and () in Welsh, is the devolved, unicameral legislature of Wales. A democratically elected body, Its role is to scrutinise the Welsh Government and legislate on devolve ...
(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 (plurale tantum, plural form for singular and 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, generally granti ...
without requiring the involvement of the Privy Council.
Northern Ireland
For most of the period from 1972 to 2007, much Northern Ireland
Northern Ireland ( ; ) is a Countries of the United Kingdom, part of the United Kingdom in the north-east of the island of Ireland. It has been #Descriptions, variously described as a country, province or region. Northern Ireland shares Repub ...
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.
The use of orders in Council during direct rule is classified as "primary legislation" and not "subordinate legislation" according to section 21 of the Human Rights Act 1998
The Human Rights Act 1998 (c. 42) is an Act of Parliament (United Kingdom), Act of Parliament of the United Kingdom which received royal assent on 9 November 1998, and came into force on 2 October 2000. Its aim was to incorporate into UK law the ...
– subordinate legislation continued to be fulfilled by statutory rules.
Controversial uses
Canada
After the British Empire entered World War I
World War I or the First World War (28 July 1914 – 11 November 1918), also known as the Great War, was a World war, global conflict between two coalitions: the Allies of World War I, Allies (or Entente) and the Central Powers. Fighting to ...
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.
During the Second World War
World War II or the Second World War (1 September 1939 – 2 September 1945) was a World war, global conflict between two coalitions: the Allies of World War II, Allies and the Axis powers. World War II by country, Nearly all of the wo ...
, the Soviet newspaper '' Trud'' accused poet and university professor Watson Kirkconnell, who was known to be both a Ukrainophile and a publicist
A publicist is a person whose job is to generate and manage publicity for a company, a brand, or public figure – especially a celebrity – or for work or a project such as a book, film, or album. Publicists are public relations specialists wh ...
of human rights abuses
Human rights are universally recognized moral principles or norms that establish standards of human behavior and are often protected by both national and international laws. These rights are considered inherent and inalienable, meaning t ...
under Stalinism
Stalinism (, ) is the Totalitarianism, totalitarian means of governing and Marxism–Leninism, Marxist–Leninist policies implemented in the Soviet Union (USSR) from History of the Soviet Union (1927–1953), 1927 to 1953 by dictator Jose ...
, of being "the Führer of Canadian Fascism
Fascism ( ) is a far-right, authoritarian, and ultranationalist political ideology and movement. It is characterized by a dictatorial leader, centralized autocracy, militarism, forcible suppression of opposition, belief in a natural social hie ...
". It is now well documented that Canadian Prime Minister Mackenzie King seriously considered acting to protect the Soviet-Canadian military alliance
A military alliance is a formal Alliance, agreement between nations that specifies mutual obligations regarding national security. In the event a nation is attacked, members of the alliance are often obligated to come to their defense regardless ...
against Nazi Germany
Nazi Germany, officially known as the German Reich and later the Greater German Reich, was the German Reich, German state between 1933 and 1945, when Adolf Hitler and the Nazi Party controlled the country, transforming it into a Totalit ...
by silencing Kirkconnell with an Order-in-Council.
An Order in Council made by the Brian Mulroney
Martin Brian Mulroney (March 20, 1939 – February 29, 2024) was a Canadian lawyer, businessman, and politician who served as the 18th prime minister of Canada from 1984 to 1993.
Born in the eastern Quebec city of Baie-Comeau, Mulroney studi ...
government on 21 November 1988 created Amex Bank of Canada, a Canadian banking subsidiary of American Express
American Express Company or Amex is an American bank holding company and multinational financial services corporation that specializes in payment card industry, payment cards. It is headquartered at 200 Vesey Street, also known as American Expr ...
, 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.
On May 1, 2020, an Order in Council was used to declare over 1,500 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 firearms 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. The amnesty period had been extended expiring October 30, 2025.
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 Northwestern Europe, off the coast of European mainland, the 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 or banishment 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 ...
of the Chagossians
The Chagossians — also called Chagos Islanders or — are an Afro-Asians, Afro-Asian ethnic group originating from freed African slaves as well as people of Asian (Indian and Malay) descent brought to the Chagos Islands, specifically Diego ...
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 British daily broadsheet conservative newspaper published in London by Telegraph Media Group and distributed in the United Kingdom and internationally. It was found ...
'', 12 May 2006. Accessed 17 December 2006. The UK government's first appeal failed, with the Court of Appeal
An appellate court, commonly called a court of appeal(s), appeal court, court of second instance or second instance court, is any court of law that is empowered to Hearing (law), hear a Legal case, case upon appeal from a trial court or other ...
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 broad ...
, 23 May 2007 However, the government successfully appealed to the House of Lords
The House of Lords is the upper house of the Parliament of the United Kingdom. Like the lower house, the House of Commons of the United Kingdom, House of Commons, it meets in the Palace of Westminster in London, England. One of the oldest ext ...
, 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 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 broad ...
, 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
The Chagossians — also called Chagos Islanders or — are an Afro-Asians, Afro-Asian ethnic group originating from freed African slaves as well as people of Asian (Indian and Malay) descent brought to the Chagos Islands, specifically Diego ...
in the Chagos Islands
The Chagos Archipelago (, ) or Chagos Islands (formerly , and later the Oil Islands) is a group of seven atolls comprising more than 60 islands in the Indian Ocean about south of the Maldives archipelago. This chain of islands is the southernmo ...
.
See also
* Delegated 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 democ ...
* Executive order (United States)
In the United States, an executive order is a directive by the president of the United States that manages operations of the federal government. The legal or constitutional basis for executive orders has multiple sources. Article Two of the ...
References
External links
* Orders in Council:
*
UK
made since October 2000.
**
Northern Ireland
*
1867–1910.
**
Alberta
**
British Columbia
**
Manitoba
**
Nova Scotia
**
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