AnOrder in Council (abbreviated asOIC in some countries) is a type of legal instrument issued by theexecutive branch of a government, often thehead of state or their representatives, on theadvice of acabinet or council of ministers. These instruments are used in severalCommonwealth realms, with equivalent instruments also found in countries with aWestminster system of government. Although the specifics vary by country, Orders in Council typically allow the executive to make formal decisions or regulations without enacting new legislation.
There are two principal types of order in council: orders in council whereby the King-in-Council exercises theroyal prerogative, and orders in council made in accordance with anact of Parliament.[1]
In the United Kingdom, orders are formally made by the monarch with the advice of thePrivy Council (King-in-Council or Queen-in-Council). In Canada, federal orders in council are made in the name of theGovernor General by theKing's Privy Council for Canada; provincial orders-in-council are of the Lieutenant-Governor-in-Council by the provincialExecutive 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 theExecutive 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]
An order in council made under the royal prerogative does not depend on anystatute 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 the prorogation of Parliament, royal charters, and the governance ofBritish Overseas Territories.
British Orders in Council may occasionally be used to effectively reversecourt decisions or enforce British law applicable to British Overseas Territories without involvingParliament such as theCaribbean Territories (Abolition of Death Penalty for Murder) Order 1991.[dubious –discuss] 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 byParliament.
It was long thought that prerogative orders, being primary legislation, were not subject tojudicial review. This was reversed in the 1985 caseCouncil 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.
In this second case, an Order in Council is made under powers conferred by legislation and is normally subject to parliamentary procedure.[4] In the UK, if the parent legislation was passed after 1 January 1948, when theStatutory Instruments Act 1946 came into force, such orders in council are a form ofstatutory instrument.[5] 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 more recently, as theScotland Act 1998 provides that draft Orders in Council may be laid before theScottish Parliament in certain circumstances in the same way as they would have been laid before the Westminster Parliament. From 2007, legislation put before theWelsh Assembly 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 [relevant 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 theCivil 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 theBurial Act 1853, approval of statutes made by Oxford or Cambridge colleges under theUniversities of Oxford and Cambridge Act 1923, and the appointment of HM Inspectors of Education, Children's Services and Skills under theEducation and Inspections Act 2006. Statutory Orders in Council approving statutes made by Durham or Newcastle universities under theUniversities of Durham and Newcastle-upon-Tyne Act 1963 are specifically excluded from the provisions of the Statutory Instruments Act 1946.[6][7][8]
Under theGovernment of Wales Act 2006, royal assent toMeasures 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.[9] The National Assembly became theSenedd (Welsh Parliament;Welsh:Senedd Cymru) in 2020, at the same time gaining the competence to passActs of Senedd Cymru, assent to which is given byletters patent without requiring the involvement of the Privy Council.
For most of the period from 1972 to 2007, muchNorthern Ireland legislation was made by order in Council as part ofdirect rule. This was done under the variousNorthern 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 theHuman Rights Act 1998 – subordinate legislation continued to be fulfilled bystatutory rules.[10]
After the British Empire enteredWorld War I on the Allied side, an Order in Council was made in Canada for the registration and in certain cases for the internment ofaliens of "enemy nationality". Between 1914 and 1920, 8,579 "enemy aliens" were detained in internment camps.[11]
During theSecond World War, the Soviet newspaperTrud accused poet and university professorWatson Kirkconnell, who was known to be both aUkrainophile and apublicist ofhuman rights abuses underStalinism, of being "the Führer of CanadianFascism".[12] It is now well documented thatCanadian Prime MinisterMackenzie King seriously considered acting to protect the Soviet-Canadianmilitary alliance againstNazi Germany by silencing Kirkconnell with an Order-in-Council.[13]
An Order in Council made by theBrian Mulroney government on 21 November 1988 created Amex Bank of Canada, a Canadian banking subsidiary ofAmerican Express, although federal banking policy at the time would not ordinarily have permitted such an establishment by a foreign company.[14]
In July 2004 and August 2006, Orders in Council were used to deny a passport toAbdurahman Khadr, a member of theKhadr family who had previously been held in detention by the United States atGuantanamo Bay, on the grounds of national security. The first was overturned on judicial review by the Federal Court[15] as, at the time of his application, national security was not included as a ground for refusal in theCanadian Passport Order,[16] which was since amended to include the ground.
In July 2017, the government of Canada used an Order in Council to strip ex-Nazi interpreterHelmut Oberlander of his Canadian citizenship.[17]
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 the2020 Nova Scotia attacks.[18] 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.[19] 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.[20] The amnesty period had been extended expiring October 30, 2025.[21]
Orders in Council were controversially used in 2004 to overturn a court ruling in theUnited Kingdom[22] that held that theexile of theChagossians from theBritish Indian Ocean Territory (BIOT) was unlawful. Initially, theHigh 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."[23] The UK government's first appeal failed, with theCourt of Appeal holding that the decision had been unlawfully taken by a government minister "acting without any constraint".[24] However, the government successfully appealed to theHouse of Lords, 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)).[25] TheLaw Lords decided[22] that the validity of an order in council made under the prerogative legislating for a colony was amenable to judicial review.[26] 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 notWednesbury 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 theChagossians in theChagos Islands.
