Orders in Council

Orders in Council. They are a form of legislation in the United Kingdom and other Commonwealth realms, issued by the sovereign on the advice of the Privy Council. These instruments hold the force of law and are a key mechanism of royal prerogative, allowing for executive action without the need for a new act of Parliament. Historically significant, they have been used for purposes ranging from implementing international treaties to governing colonies and managing national emergencies.

Definition and legal basis

The legal authority for these instruments derives primarily from the royal prerogative, powers historically vested in the monarch and now exercised by ministers. Their constitutional basis is also found in specific enabling acts of the Parliament, such as the Civil Contingencies Act 2004 and the European Communities Act 1972. They are distinct from Orders of Council, which are made by the Privy Council without sovereign approval, and from Statutory Instruments, which are made under powers delegated by an act of Parliament. The Supreme Court can review their legality, as established in cases like R (Miller) v Secretary of State for Exiting the European Union.

Historical use and examples

Historically, they were a primary tool of colonial administration, notably used to govern territories like British North America and to enforce blockades, such as the Orders in Council (1807), which contributed to the War of 1812 with the United States. During the First World War, they were used for economic warfare, and in the Second World War, the Defence of the Realm Act 1914 facilitated their use for national security. A famous modern example is the Saint Helena Act 1833, which abolished slavery throughout the British Empire. They have also been used to implement significant constitutional changes, such as granting independence to countries like Ceylon and Nigeria.

Procedure and issuance

The process begins with a government department, such as the Foreign, Commonwealth and Development Office or the Ministry of Justice, drafting a proposal. The draft is then submitted to the Privy Council Office for scrutiny. Following approval, it is formally made at a meeting of the Privy Council, traditionally attended by a quorum of councillors, often including the Lord President of the Council. The sovereign's approval is then signified, after which the instrument is sealed with the Great Seal of the Realm or the Privy Seal and published in The London Gazette. In urgent cases, they can be made using a streamlined process under the Civil Contingencies Act 2004.

Role in government and separation of powers

These instruments occupy a unique space where executive action carries legislative force, a concept that interacts with the principle of separation of powers. Their use under the royal prerogative means they are not subject to prior debate or vote in the House of Commons or the House of Lords, though they may be subject to subsequent Parliamentary scrutiny. This has led to significant judicial review, as seen in the Cherry case and the aforementioned R (Miller) v Secretary of State for Exiting the European Union, where the Supreme Court clarified limits on their use to prorogue Parliament. Their existence underscores the unwritten nature of the British constitution.

Contemporary application and significance

In modern practice, they remain a vital tool for giving effect to international obligations, such as those under the United Nations Act 1946 to impose sanctions on regimes like those in Syria or Belarus. They are also used for domestic administrative orders, including the transfer of functions between ministers and the governance of British Overseas Territories like the Falkland Islands and Gibraltar. Their significance was highlighted during the COVID-19 pandemic, where they were used to enact emergency public health regulations. As a flexible instrument of executive governance, they continue to be a subject of debate regarding democratic accountability and the scope of ministerial power.

Category:British law Category:United Kingdom constitution Category:Legal documents