Orders in Council

Orders in Council
Name	Orders in Council
Type	Executive instrument
Jurisdiction	United Kingdom, Canada, Australia, New Zealand, Jamaica, Bahamas
Authority	Crown prerogative; statutory delegated power
First used	17th century
Related	Royal prerogative, Privy Council (United Kingdom), Governor General of Canada

Orders in Council are executive instruments issued by the Privy Council (United Kingdom) or by vice-regal representatives in Canada, Australia, New Zealand, and other Commonwealth of Nations realms, used to give effect to prerogative powers or to exercise delegated authority under statutes such as the Statute of Westminster 1931 or the Constitution Act, 1867. They function alongside instruments like Regulations (statutory instruments), Letters Patent and Proclamations (legal) to implement policy, manage administration, and effect urgent measures in matters touching on royal prerogative and delegated legislative competence.

Definition and Legal Basis

Orders in Council derive from the royal prerogative of the Monarchy of the United Kingdom and its counterparts in Commonwealth realms, historically exercised by monarchs such as Charles II and formalized in institutions like the Privy Council (United Kingdom) and the office of the Governor General of Canada. Their legal basis may be direct prerogative authority or statutory delegation under instruments including the Emergency Powers Act 1920 and the Canada Elections Act. Key judicial interpretations have come from decisions of courts such as the House of Lords (now the Supreme Court of the United Kingdom), the Supreme Court of Canada, and the Privy Council (judicial committee), shaping doctrines on non-justiciability and prerogative limits in cases like Entick v Carrington principles and later constitutional litigation.

Historical Development

Orders in Council evolved from medieval practices of royal councils presided over by monarchs like Henry VIII and later formalized during the periods of constitutional conflict involving figures such as Oliver Cromwell and Charles I, culminating in shifts after the Glorious Revolution and statutes like the Bill of Rights 1689. Use expanded during imperial administration across territories governed under instruments like the Statute of Westminster 1931 and colonial governance mechanisms affecting colonies including India, Canada, and Australia. In the 19th and 20th centuries Orders in Council were instrumental during crises managed by leaders from William Gladstone to Winston Churchill, and during wartime governance under statutes such as the Emergency Powers (Defence) Act 1939.

Types and Procedures

Orders in Council fall into categories: prerogative Orders issued under authority of the Royal prerogative (e.g., appointments involving Privy Council (United Kingdom), Governor General of Canada acting on advice of a Prime Minister of the United Kingdom or Prime Minister of Canada), and statutory Orders enacted under powers in statutes like the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 framework or the Canadian Emergencies Act. Procedurally, they are drafted by departments such as the Home Office (United Kingdom), the Privy Council Office (Canada), and approved in meetings of bodies like the Privy Council (United Kingdom), signed by officers including the Monarch of the United Kingdom or the Governor General of Canada, and then registered in instruments comparable to The London Gazette publications. Judicial review procedures engage courts including the High Court of Justice (England and Wales), the Federal Court of Canada, and appellate bodies like the Court of Appeal (England and Wales).

Use in the United Kingdom

In the United Kingdom Orders in Council are used for matters ranging from appointments to the Church of England hierarchy, implementation of international obligations under treaties such as the Treaty of Versailles or the European Communities Act 1972 (historically), to matters under the Northern Ireland (Temporary Provisions) Act 1972 and regulations concerning British Overseas Territories like Bermuda and the Falkland Islands. Ministers from cabinets led by figures such as Margaret Thatcher and Tony Blair have used Orders for regulatory adjustments and orders relating to national security under frameworks inspired by legislation like the Civil Contingencies Act 2004.

Use in Canada and Other Commonwealth Realms

In Canada Orders in Council are central to federal and provincial administration, used for appointments by the Governor General of Canada and lieutenant governors, immigration decisions under the Immigration and Refugee Protection Act, tariff adjustments under the Customs Act, and emergency measures under the Emergencies Act after cases such as the invocation debates during the tenure of prime ministers including Pierre Trudeau and Justin Trudeau. Similar mechanisms operate in Australia through the Governor-General of Australia and in New Zealand via the Governor-General of New Zealand, affecting policy areas from defense under cabinets led by figures like Robert Menzies and Jacinda Ardern to indigenous affairs involving entities such as Te Pāti Māori.

Controversies and Legal Challenges

Orders in Council have provoked controversy in issues like deportations leading to litigation in courts including the Supreme Court of Canada, controversial uses during the Suez Crisis era implicating figures like Anthony Eden, and disputes over prerogative versus statutory powers in cases referencing doctrines from Entick v Carrington and later jurisprudence of the House of Lords and the Supreme Court (United Kingdom). Challenges have arisen in contexts such as the use of Orders to implement sanctions under regimes related to the United Nations Security Council resolutions, allegations during the administration of Brian Mulroney and Stephen Harper in Canada, and debates over transparency during administrations like those of David Cameron and Theresa May.

Comparative Perspectives and Reform proposals

Comparative study contrasts usage across jurisdictions such as the United Kingdom, Canada, Australia, and New Zealand, and examines reform proposals advanced by commissions like the Law Commission (England and Wales), the Royal Commission on Aboriginal Peoples and academics at institutions including Oxford University, Harvard Law School, University of Toronto, and Australian National University. Proposals include codification similar to legislation like the Statute of Westminster 1931, enhanced parliamentary scrutiny comparable to the Standing Orders of the House of Commons (UK), greater judicial oversight akin to practices under the Constitution Act, 1982 in Canada, and transparency reforms modeled on administrative law reforms in jurisdictions such as France and Germany.

Category:Legal documents