Order in Council

Order in Council
Name	Order in Council
Type	Executive instrument
Used by	United Kingdom, Canada, Australia, New Zealand, other Commonwealth realms

Order in Council is an executive instrument by which a sovereign or representative exercises prerogative or statutory powers, often to make subordinate legislation, approve appointments, or effect emergency measures. It functions within a constitutional framework shaped by precedent from monarchs, cabinets, parliaments, and courts, and intersects with statutes, conventions, and royal prerogative doctrines associated with figures such as George III, Victoria, Edward VIII, Elizabeth II. Orders in Council have been invoked in crises including the War of 1812, First World War, Second World War, and constitutional episodes like the Constitution Act, 1867 and debates around the Statute of Westminster 1931.

Definition and Legal Nature

An Order in Council is an instrument issued under the authority of a sovereign or governor-general acting on advice from an executive body such as the Privy Council of the United Kingdom, the Cabinet of Canada, the Australian Cabinet, or the Executive Council of New Zealand. It derives its force from sources like the Royal prerogative, statutes including the Reserve Powers, or delegated legislation mechanisms exemplified by the Interpretation Act 1978 and the Canada Act 1982. Courts such as the Supreme Court of Canada, the House of Lords (now the Supreme Court of the United Kingdom), and the High Court of Australia have delineated its character relative to instruments like statutory instruments (UK), proclamations used under the Royal Assent, and orders under acts such as the Emergency Powers Act 1920.

Historical Development

Orders reflecting royal commands date from medieval reigns of Henry II, John, King of England, and were formalized through bodies like the Privy Council (England), the Great Council, and later the Cabinet. Key turning points include the Glorious Revolution, which influenced doctrines adjudicated in cases such as R v Secretary of State for the Home Department, ex parte Northumbria Police-style disputes, parliamentary reforms like the Reform Act 1832, and imperial statutes including the Government of India Act 1935. The evolution continued through constitutional crises such as the Suez Crisis and statutory changes like the Statute of Westminster which reshaped Orders' role across dominions such as Canada, Australia, New Zealand, South Africa and Ireland.

Procedures and Types

Orders are made through procedures involving advisory bodies: the Privy Council of the United Kingdom, the Privy Council Office, the Governor General of Canada, state governors in Australia and governors in New Zealand. Types include Orders in Council under prerogative for appointments (e.g., commissions for Governor General of Canada), under statute to bring statutory provisions into force as with commencement orders for the Parliamentary Voting System and Constituencies Act 2011, and emergency Orders under instruments like the Emergency Powers Act 1920 or wartime regulations used during the Second World War. Other variants include Orders in Council made under colonial statutes such as the India Office regulations and Orders implementing international obligations under treaties like the Treaty of Versailles or the North Atlantic Treaty.

Legal Effect and Judicial Review

Orders in Council can have primary or secondary legal effect depending on source authority—prerogative Orders operate differently from those made pursuant to statutory delegation such as under the Statutory Instruments Act. Judicial review by courts including the Supreme Court of Canada, the Court of Appeal (England and Wales), and the High Court of Australia assesses vires, procedural fairness, and compatibility with rights protected by instruments like the Canadian Charter of Rights and Freedoms or the Human Rights Act 1998. Landmark cases interpreting Orders' legality include disputes analogous to those in Anisminic Ltd v Foreign Compensation Commission-style jurisprudence and prerogative reviews following principles seen in cases involving the Royal Prerogative and judicial statements in the R (Miller) v Secretary of State for Exiting the European Union context.

Use by Commonwealth and Other Jurisdictions

In the United Kingdom, Orders in Council are associated with the Privy Council (United Kingdom), statutory commencement, and territories governance such as for the Cayman Islands, Bermuda, and Falkland Islands. In Canada they are issued by the Governor General of Canada on advice from the Privy Council Office or Prime Minister of Canada and include Orders in Council for appointments, proclamations under the Constitution Act, 1867, and measures like wartime regulations during the Conscription Crisis of 1917. In Australia, state governors and the Governor-General of Australia use Orders for appointments and for activating provisions under the Constitution of Australia; federal use reflects parallels with the Commonwealth Administrative Arrangements Orders. Other Commonwealth realms and former colonies—New Zealand, Jamaica, Barbados, Malta—have adapted the instrument within local statutes and constitutional conventions.

Controversies and Notable Examples

Orders in Council have generated controversy in instances such as internment and deportation orders during the Second World War, emergency measures in the Suez Crisis, and modern disputes over refugee removals and national security akin to cases involving the Anti-terrorism, Crime and Security Act 2001 and litigation before the European Court of Human Rights. Notable examples include use for constitutional suspension in crises comparable to the dismissal of the Whitlam Government in Australia, Orders affecting colonial governance in Hong Kong and the British Mandate for Palestine, and executive actions challenged in courts such as the Supreme Court of Canada and the House of Lords that defined limits on prerogative power. Debates continue involving transparency, parliamentary oversight exemplified by proposals linked to the Constitutional Reform and Governance Act 2010, and comparative reforms advocated by scholars referencing institutions like the Institute for Government and historical analyses invoking figures such as Walter Bagehot.

Category:Commonwealth constitutional law