View source for Order in Council

{{Distinguish|Order of Council}}
{{For|the Orders in Council of 1807|Orders in Council (1807)}}
{{Short description|Legislative order in many countries}}
{{Use dmy dates|date=May 2018}}An '''Order in Council''' is a type of legislation in many countries, especially the [[Commonwealth realm]]s. In the [[United Kingdom]], this legislation is formally made in the name of [[Monarchy of the United Kingdom|the monarch]] by and with the [[Advice (constitutional)|advice]] and consent of the [[Privy Council of the United Kingdom|Privy Council]] (''[[King-in-Council]]''); however, in other countries, the terminology may vary. Orders-in-Council are distinct from [[Order of Council|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]], and orders in council made in accordance with an [[act of Parliament]].<ref name="CabinetManual">{{Cite book |url=https://www.gov.uk/government/publications/cabinet-manual |title=Cabinet Manual |date=14 December 2010 |publisher=Cabinet Office |pages=19, 44–45}}</ref>

In the United Kingdom, orders are formally made by the monarch with the advice of the [[Privy Council of the United Kingdom|Privy Council]] (''[[King-in-Council|King-in-Council or Queen-in-Council]]''). In Canada, federal orders in council are made in the name of the [[Governor General of Canada|Governor General]] by the [[King's Privy Council for Canada]]; provincial orders-in-council are of the Lieutenant-Governor-in-Council by the provincial [[Executive Council (Commonwealth countries)|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 of New Zealand|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.<ref>{{cite web |url=https://dpmc.govt.nz/our-programmes/greater-christchurch-recovery-and-regeneration/orders-council |title=Orders in Council |publisher=Department of the Prime Minister and Cabinet |date=19 February 2019 |access-date=30 April 2020 |archive-date=12 May 2020 |archive-url=https://web.archive.org/web/20200512035729/https://dpmc.govt.nz/our-programmes/greater-christchurch-recovery-and-regeneration/orders-council |url-status=dead }}</ref>

===Prerogative orders===
An order in council made under the royal prerogative does not depend on any [[statute]] for its authority, although an act of Parliament may change this.<ref name="Ref_">''Council of Civil Service Unions v. Minister for the Civil Service'' [1985] 374 at 399, per [[Ian Fraser, Baron Fraser of Tullybelton|Lord Fraser of Tullybelton]]</ref> 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 territory|British Overseas Territories]].

British Orders in Council may occasionally be used to effectively reverse [[Courts of England and Wales|court]] decisions or enforce British law applicable to British Overseas Territories without involving [[Parliament of the United Kingdom|Parliament]] such as the [[Caribbean Territories (Abolition of Death Penalty for Murder) Order 1991]].{{dubious|date=February 2024}} 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]].<!-- [[New Zealand]] also uses Orders in Council to exercise the Royal Prerogative (e.g. [[Mercy]]: [http://www.gg.govt.nz/role/royalprerogative.htm] [http://online.gazette.govt.nz/MSOS118/On-Line/NZGazette.nsf/6cee7698a9bbc7cfcc256d510059ed0b/a53a5b53f67d4415cc2570230083c3e7?OpenDocument&Highlight=0,Governor-General]).-->

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 ''[[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.

===Statutory orders===
In this second case, an Order in Council is made under powers conferred by legislation and is normally subject to parliamentary procedure.<ref>{{cite book|url=https://assets.publishing.service.gov.uk/media/5a79d5d7e5274a18ba50f2b6/cabinet-manual.pdf|title=The Cabinet Manual|page=9|date=October 2021}}</ref> In the UK, if the parent legislation was passed after 1 January 1948, when the [[Statutory Instruments Act 1946]] came into force, such orders in council are a form of [[statutory instrument (UK)|statutory instrument]].<ref>{{cite web|url=https://erskinemay.parliament.uk/section/5617/form-and-character-of-statutory-instruments|website=Erskine May|title=Form and character of statutory instruments|access-date=24 March 2025}}</ref> 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 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]] 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 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.<ref>{{cite web|url=https://www.durham.ac.uk/about-us/governance/governance-documentation/statutes-ordinances-and-regulations/statutes-and-ordinances/#d.en.1608530|title=Statutes, Ordinances and Regulations|at=24. Amendment of Statutes|website=Durham University|access-date=24 March 2025}}</ref><ref>{{cite web|url=https://www.ncl.ac.uk/executive/assets/statutes-of-the-university/#QW1lbmRtZW50JTIwb2YlMjBTdGF0dXRlcw==|title=Statutes of the University of Newcastle upon Tyne|at=Amendment of Statutes|access-date=24 March 2025|website=Newcastle University}}</ref><ref>{{cite web|url=https://www.legislation.gov.uk/ukla/1963/11/enacted|title=Universities of Durham and Newcastle-upon-Tyne Act 1963|website=Legislation.gov.uk|access-date=24 March 2025}}</ref>

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.<ref name="Ref_b">For example, the [http://www.opsi.gov.uk/legislation/wales/mwa2008/oic/mwaoic_20080001_en.pdf Order approving the NHS Redress (Wales) Measure 2008]</ref> The National Assembly became the [[Senedd]] (Welsh Parliament; {{Langx|cy|Senedd Cymru}}) in 2020, at the same time gaining the competence to pass [[Act of Senedd Cymru|Acts of Senedd Cymru]], assent to which is given by [[letters patent]] without requiring the involvement of the Privy Council.

====Northern Ireland====
{{see also|List of orders in Council for Northern Ireland}}
For most of the period from 1972 to 2007, much [[Northern Ireland]] legislation was made by order in Council as part of [[Direct rule over Northern Ireland|direct rule]]. This was done under the various [[Northern Ireland Act]]s 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]] – subordinate legislation continued to be fulfilled by [[statutory rules of Northern Ireland|statutory rules]].<ref>{{Cite legislation UK |type=act |year=1998 |chapter=42 |act=Human Rights Act 1998 |section=21 |date=1998-11-09 |accessdate=2024-09-11 }}</ref>

==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 [[Alien (law)|aliens]] of "enemy nationality". Between 1914 and 1920, 8,579 "enemy aliens" were detained in internment camps.<ref name="Ref_d">Luciuk, Lubomyr (1998). [http://www.infoukes.com/history/internment/booklet01/ ''A Time for Atonement'']. The Limestone Press.</ref>

During the [[Second World War]], the Soviet newspaper ''[[Trud (Russian newspaper)|Trud]]'' accused poet and university professor [[Watson Kirkconnell]], who was known to be both a [[Ukrainophile]] and a [[publicist]] of [[human rights abuses]] under [[Stalinism]], of being "the Führer of Canadian [[Fascism]]".<ref> "McMaster Professor Führer of Fascists Here, Says Red Paper", ''[[Montreal Gazette]]'', 2 November, 1944.</ref> It is now well documented that [[Prime Minister of Canada|Canadian Prime Minister]] [[Mackenzie King]] seriously considered acting to protect the Soviet-Canadian [[military alliance]] against [[Nazi Germany]] by silencing Kirkconnell with an Order-in-Council.<ref> {{cite encyclopedia |last=Meister|first=Daniel |title=Watson Kirkconnell |encyclopedia=[[The Canadian Encyclopedia]] |date=16 December 2013 |publisher=[[Historica Canada]] |edition=online |url=https://www.thecanadianencyclopedia.ca/en/article/watson-kirkconnell}} </ref>

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.<ref name="Ref_c">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)</ref>

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 detainment camp|Guantanamo Bay]], on the grounds of national security. The first was overturned on judicial review by the Federal Court<ref>''Khadr v. Canada (Attorney General)'', 2006 F.C. 727, [https://reports.fja-cmf.gc.ca/fja-cmf/j/en/item/332019/index.do <nowiki>[2007] 2 F.C.R. 218</nowiki>].</ref> as, at the time of his application, national security was not included as a ground for refusal in the ''Canadian Passport Order'',<ref>[https://laws-lois.justice.gc.ca/eng/regulations/SI-81-86/FullText.html Canadian Passport Order SI/81-86].</ref> 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.<ref>{{cite web|url=https://www.cbc.ca/news/canada/kitchener-waterloo/helmut-oberlander-citizenship-stripped-fourth-time-1.4220666|title=Ex-Nazi interpreter Helmut Oberlander stripped of citizenship for 4th time|last=Bueckert|first=Kate|date=July 26, 2017|website=CBC News|access-date=September 4, 2020}}</ref>

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]].<ref>{{cite news |last1=Tasker |first1=John Paul |title=Trudeau announces ban on 1,500 types of 'assault-style' firearms — effective immediately |url=https://www.cbc.ca/news/politics/trudeau-gun-control-measures-ban-1.5552131 |access-date=29 December 2021 |work=CBC News |publisher=CBC/Radio-Canada |date=1 May 2020}}</ref> The order immediately nullified the existing registrations of ownership for all the weapons it affected, making it illegal for owners to possess, use, transport, or sell them except in a few limited circumstances.<ref name="rcmp">{{cite web |title=What you need to know about the Government of Canada's new prohibition on certain firearms and devices |url=https://www.rcmp-grc.gc.ca/en/firearms/need-know-the-government-canadas-new-prohibition-certain-firearms-and-devices |website=Royal Canadian Mounted Police |date=5 May 2020 |access-date=29 December 2021 |archive-date=10 September 2020 |archive-url=https://web.archive.org/web/20200910175741/https://www.rcmp-grc.gc.ca/en/firearms/need-know-the-government-canadas-new-prohibition-certain-firearms-and-devices |url-status=dead }}</ref> 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.<ref name="jlw">{{cite web |title=Order Declaring an Amnesty Period (2020) |url=https://laws-lois.justice.gc.ca/eng/regulations/SOR-2020-97/page-1.html |website=Justice Laws Website |date=May 2020 |publisher=Government of Canada |access-date=29 December 2021}}</ref> The amnesty period had been extended expiring October 30, 2025.<ref>{{Cite web |title=What you need to know about the Government of Canada's December 5, 2024, prohibition of certain unique makes and models of firearms |url=https://rcmp.ca/en/firearms/what-you-need-know-about-government-canadas-december-5-2024-prohibition-certain-unique-makes-and |website=rcmp.ca}}</ref>

===United Kingdom===
Orders in Council were controversially used in 2004 to overturn a court ruling in the [[United Kingdom]]<ref name="Ref_h">''[https://publications.parliament.uk/pa/ld200708/ldjudgmt/jd081022/banc-1.htm R (Bancoult) v Secretary of State For Foreign and Commonwealth Affairs]'' [2008] UKHL 61</ref> that held that the [[exile]] of the [[Chagossians]] from the [[British Indian Ocean Territory]] (BIOT) was unlawful. Initially, the [[High Court of Justice|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."<ref name="Ref_e">"[https://web.archive.org/web/20060619185128/http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2006/05/12/wchag12.xml&sSheet=/news/2006/05/12/ixnews.html 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.</ref> The UK government's first appeal failed, with the [[Court of Appeal of England and Wales|Court of Appeal]] holding that the decision had been unlawfully taken by a government minister "acting without any constraint".<ref name="Ref_f">"[http://news.bbc.co.uk/1/hi/uk/6683205.stm Chagos families win legal battle]", [[BBC News]], 23 May 2007</ref> However, the government successfully appealed to the [[Appellate Committee of the House of Lords|House 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)]]'').<ref name="Ref_g">"[http://news.bbc.co.uk/1/hi/uk/7683726.stm Chagos exiles ruling overturned]". [[BBC News]], 22 October 2008</ref> The [[Law Lords]] decided<ref name="Ref_h"/> that the validity of an order in council made under the prerogative legislating for a colony was amenable to judicial review.<ref>Note: see paragraph 35 of the decision</ref> 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 Archipelago|Chagos Islands]].

==See also==
* [[Delegated legislation]]
* [[Executive order (United States)]]

==References==
{{Reflist|2}}

==External links==
{{Wikisource|Portal:Canadian Orders-in-Council|Canadian Orders-in-Council}}
* Orders in Council:
** [https://web.archive.org/web/20121017072318/http://privycouncil.independent.gov.uk/privy-council/privy-council-meetings/ UK] made since October 2000.
*** [http://www.legislation.gov.uk/nisi Northern Ireland]
** [http://www.collectionscanada.gc.ca/databases/orders/index-e.html Canada] 1867–1910.
*** [http://www.qp.alberta.ca/507.cfm Alberta]
*** [http://www.qp.gov.bc.ca/statreg/oic/ British Columbia] {{Webarchive|url=https://web.archive.org/web/20110718140535/http://www.qp.gov.bc.ca/statreg/oic/ |date=18 July 2011 }}
*** [http://www2.gov.mb.ca/oic/OrdersinCouncil.aspx Manitoba] {{Webarchive|url=https://web.archive.org/web/20110807213937/http://www2.gov.mb.ca/oic/OrdersinCouncil.aspx |date=7 August 2011 }}
*** [http://www.gov.ns.ca/exec_council/oic/ Nova Scotia]
*** [http://www.publications.gov.sk.ca/deplist.cfm?d=188&c=1669&cl=8 Saskatchewan]
* [https://web.archive.org/web/20080528160028/http://library.queensu.ca/webdoc/gov/OrdersinCouncil.pdf Queen's University: &#91;Canadian&#93; Orders-in-Council – An Overview]

{{UK legislation}}
{{Authority control}}

{{DEFAULTSORT:Order-In-Council}}
[[Category:Orders in Council| ]]
[[Category:Canadian administrative law]]
[[Category:Statutory instruments of the United Kingdom| ]]
[[Category:United Kingdom administrative law]]
[[Category:Westminster system]]

[[de:Kabinettsorder]]