Order in Council

Order in Council
Name	Order in Council
Jurisdiction	United Kingdom, Commonwealth realms, and other jurisdictions with Westminster system heritage
Type	Executive order or secondary legislation
Date created	Medieval origins, formalized post-Glorious Revolution
Administrator	Privy Council, Governor-in-Council (in Commonwealth realms)
Status	Active

Order in Council. An Order in Council is a type of legislation or executive instrument made by the head of state, or their representative, acting on the formal advice of a privy council. In the United Kingdom, the most significant form is made by the King on the advice of the Privy Council of the United Kingdom, effectively meaning the government of the day. These instruments hold the force of law and are a fundamental mechanism of governance, used for a wide array of purposes from implementing Acts of Parliament to managing constitutional affairs and British Overseas Territories. Their authority and application extend across the Commonwealth realms, such as Canada and New Zealand, where similar instruments are issued by the Governor-General.

Definition and legal basis

The legal basis for an Order in Council derives from the royal prerogative or specific statutory authority granted by an Act of Parliament. When made under the prerogative, it is a primary exercise of executive power, historically used for matters like declaring war or making treaties. Statutory Orders in Council are a form of delegated legislation or secondary legislation, used to bring specific sections of an Act of Parliament into force or to provide detailed regulations. The constitutional principle underpinning their validity in the United Kingdom is that the monarch acts on ministerial advice, a convention solidified after the Glorious Revolution and the passage of the Bill of Rights 1689. In Commonwealth realms like Australia, the authority flows from their own constitutions and the powers vested in the Governor-General.

Historical development

The origins of the Order in Council lie in the medieval King's Council, which evolved into the Privy Council of the United Kingdom. Its use became more formalized as a tool of executive governance from the Tudor period onward. A significant historical development was its role in colonial administration; for instance, the Royal Proclamation of 1763, which governed the expansion of British North America, was issued as an Order in Council. The Napoleonic Wars saw their use for economic measures like the Orders in Council (1807), which enforced a blockade against Napoleonic France and contributed to the War of 1812 with the United States. The Constitutional Reform Act 2005 later transferred the judicial functions of the Judicial Committee of the Privy Council, which had been a key appellate court for the British Empire.

Types and uses

There are two principal types: Prerogative Orders in Council and Statutory Orders in Council. Prerogative orders are used for senior public appointments, the governance of British Overseas Territories like the Falkland Islands, and in matters of foreign affairs. Statutory orders are extensively used for technical regulations, such as those under the European Communities Act 1972 (prior to Brexit) or the Health and Safety at Work etc. Act 1974. They are also crucial for constitutional instruments, including those that establish new Commonwealth realm governments or alter parliamentary constituency boundaries. During emergencies, they can be used to enact measures under the Civil Contingencies Act 2004.

Procedure and issuance

The procedure for making an Order in Council in the United Kingdom involves a meeting of the Privy Council of the United Kingdom, typically attended by a quorum of ministers including the Lord President of the Council. The monarch formally approves the order, though this is a ceremonial act based on settled government advice. Drafts are usually prepared by the relevant government department, such as the Foreign, Commonwealth and Development Office for territorial matters or the Ministry of Justice for constitutional issues. In Canada, the process involves the Governor General acting on the advice of the King's Privy Council for Canada, effectively the federal Cabinet. Most statutory orders are subject to parliamentary scrutiny procedures, such as the affirmative resolution procedure in the House of Commons.

Notable examples

Historically significant examples include the Orders in Council (1807) that enforced the Continental System against France. The Alaska Boundary Dispute was resolved by an international tribunal whose decision was implemented via an Order in Council. In 2004, an Order in Council was used to establish the Civil Partnership Act 2004, granting recognition to same-sex unions. A controversial modern use was the suspension of the Northern Ireland Assembly in 2002, enacted through this mechanism. The British Nationality Act 1981 relied on Orders in Council to detail provisions for British Overseas Territories citizens.

Contemporary role and significance

Today, Orders in Council remain a vital and flexible instrument of executive governance. They are frequently used to implement international obligations and treaties, such as those agreed through the World Trade Organization. In the United Kingdom, they continue to regulate the constitutions of Crown Dependencies like the Isle of Man and British Overseas Territories including Gibraltar. The process can bypass the normal legislative timetable of Parliament, making it useful for urgent or non-controversial technical updates. Their use, however, is subject to judicial review by courts such as the Supreme Court of the United Kingdom, which can strike down orders that exceed legal authority, ensuring they remain within the framework established by Acts of Parliament and constitutional convention.

Category:British law Category:Constitutional law Category:Legal terminology