World Library  
Flag as Inappropriate
Email this Article
 

Order in Council

An Order in Council is a type of legislation in many countries, especially the Commonwealth realms. In the United Kingdom this legislation is formally made in the name of the Queen by the Privy Council (Queen-in-Council), but in other countries the terminology may vary. The term should not be confused with Order of Council.

Contents

  • Assent 1
  • Types, usage and terminology 2
    • Prerogative orders 2.1
    • Orders in Council as Statutory Instruments 2.2
  • Controversial uses 3
    • Canada 3.1
    • United Kingdom 3.2
  • See also 4
  • References 5
  • External links 6

Assent

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

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 they are made in the name of the Governor General by the Queen's Privy 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 (Governor-in-Council, Governor-General-in-Council etc.) In New Zealand, the Orders in 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, and does not depend on any statute for its authority, although an 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 and dealing with international relations.

Traditionally, Orders in Council are used as a way for the

  • 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 - An Overview

External links

  1. ^ "Draft Cabinet Manual, para 32" (PDF).  
  2. ^ Council of Civil Service Unions v. Minister for the Civil Service [1985] 374 at 399, per Lord Fraser of Tullybelton
  3. ^ Home defence and emergency planning 1972-2001 (PDF),  
  4. ^ Historical use: see Orders in Council (1807)
  5. ^ For example, the Order approving the NHS Redress (Wales) Measure 2008
  6. ^ ; The Limestone Press, 1988A Time for AtonementLuciuk, Lubomyr;
  7. ^ 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, July 30, 1990 v103 n31 p33(1)
  8. ^ 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.
  9. ^ Chagos families win legal battle, BBC, 23 May 2007
  10. ^ Chagos exiles ruling overturnedBBC News: 22 October 2008
  11. ^ R (Bancoult) v Secretary of State For Foreign and Commonwealth Affairs [2008] UKHL 61

References

See also

Orders in Council were controversially used in 2004 to overturn a court ruling in the United Kingdom which held that the exile of the Chagossians from the British Indian Ocean Territory (BIOT) was unlawful. However, the High Court, in 2006, held that these Orders in Council were unlawful, saying "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 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). Further that 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 BIOT. Nor were the orders Wednesbury unreasonable on the facts given the considerations of security and cost of resettlement. Further, none of the orders were 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.

United Kingdom

In July 2004 and August 30, 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.

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.[7]

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.[6]

Canada

Controversial uses

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]

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.

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:"

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, and 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 House, or, exceptionally, both ('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.

Orders in Council as Statutory Instruments

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.

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.

. Civil Contingencies Act 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 under the [4][3]

Help improve this article
Sourced from World Heritage Encyclopedia™ licensed under CC BY-SA 3.0
Help to improve this article, make contributions at the Citational Source
This article was sourced from Creative Commons Attribution-ShareAlike License; additional terms may apply. World Heritage Encyclopedia content is assembled from numerous content providers, Open Access Publishing, and in compliance with The Fair Access to Science and Technology Research Act (FASTR), Wikimedia Foundation, Inc., Public Library of Science, The Encyclopedia of Life, Open Book Publishers (OBP), PubMed, U.S. National Library of Medicine, National Center for Biotechnology Information, U.S. National Library of Medicine, National Institutes of Health (NIH), U.S. Department of Health & Human Services, and USA.gov, which sources content from all federal, state, local, tribal, and territorial government publication portals (.gov, .mil, .edu). Funding for USA.gov and content contributors is made possible from the U.S. Congress, E-Government Act of 2002.
 
Crowd sourced content that is contributed to World Heritage Encyclopedia is peer reviewed and edited by our editorial staff to ensure quality scholarly research articles.
 
By using this site, you agree to the Terms of Use and Privacy Policy. World Heritage Encyclopedia™ is a registered trademark of the World Public Library Association, a non-profit organization.
 


Copyright © World Library Foundation. All rights reserved. eBooks from Project Gutenberg are sponsored by the World Library Foundation,
a 501c(4) Member's Support Non-Profit Organization, and is NOT affiliated with any governmental agency or department.