Definitions

Word order in Latin

Order-in-Council

An Order-in-Council is a type of legislation in Commonwealth Realms. In the United Kingdom this legislation is formally made in the name of the Queen by the Privy Council (Queen-in-Council); in Canada in the name of the Governor General by the Queen's Privy Council for Canada; and in the name of the Governor-General, Lieutenant-Governor, or Governor by the Executive Council (Governor-in-Council) in other Realms, Canadian provinces, Australian states, or British Overseas Territories.

Assent

Although the Orders are nominally made by the Queen or her representative, her assent is now normally a formality only. What actually happens is that the Lord President of the Council, President of the Queen's Privy Council for Canada, or the equivalent figure in the other realms (a cabinet minister), reads out batches of Orders-in-Council - drafted by the government - in front of the monarch or vice-regal officer (typically a Governor-General), who, after every couple of orders, says 'Agreed'. They then pass into law, where they are fully effective. There have, however, been instances recorded in several Realms where a Governor has questioned the technical basis of a proposed regulation, refused Royal Assent, and the order has been returned to the relevant department for revision.

Types and usage

Two principal types of Order-in-Council exist: Orders-in-Council whereby the Queen-in-Council, or Governor-in-Council, exercises the Royal Prerogative, and Orders-in-Council made in accordance with an Act of Parliament.

Prerogative Orders

Orders-in-Council made under the Royal Prerorgative are primary legislation, and does not depend on any statute for its authority, although it may be overridden by an Act of Parliament . This type has become less common with the passage of time, as statutes encroach on areas which 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 dealing with servants of the Crown, such as the standing orders for civil servants, appointing heads of Crown corporations, governance of British Overseas Territories, making appointments in the Church of England and dealing with international relations.

Traditionally, Orders-in-Council are used as a way for the Prime Minister to make political appointments, but they can also be used to issue simple laws as a sort of decree. Often in times of emergency, a government may issue legislation directly through Orders-in-Council, forgoing the usual parliamentary procedure in accordance with the Defence of the Realm Act (now repealed), and assorted other emergency powers legislation. However, most Orders of this sort are usually eventually formalized according to the traditional lawmaking process, if they are not revoked at the end of the emergency (Historical use: see Orders in Council (1807)). Professor Ramsay, of the University of British Columbia, says that in Canada there is no formal requirement to deposit Orders-in-Council with a registrar of regulations.

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.

British Orders-in-Council may occasionally be used to effectively reverse court decisions applicable to British Overseas Territories without involving Parliament. 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.

Orders-in-Council as Statutory Instruments

In this second case, an Order-in-Council is merely another form of Statutory Instrument (in the UK, regulated by the Statutory Instruments Act 1946), albeit subject to more formalities than a simple statutory instrument. This kind of Order-in-Council tends to be reserved for the most important pieces of subordinate legislation, and its use is likely to become more common. Like all statutory instruments, they may either 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 House, or, exceptionally, both ('affirmative resolution procedure'). That said, the use of Orders-in-Council has been extended 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 will be enacted through Orders-in-Council after following the affirmative resolution procedure.

An Order-in-Council of this type usually has the following form: "Her Majesty, in pursuance of [relevant section of primary legislation], is pleased, by and with the advice of Her Privy Council, to order, and it is hereby ordered, as follows:"

For much of the period from 1972 to 2007, much Northern Ireland legislation was made by Order-in-Council. This was done under the various Northern Ireland Acts 1974 to 2000, and not in virtue of the Royal Prerogative.

Under the Government of Wales Act 2006, Royal Assent to Measures of the National Assembly for Wales is given by Order-in-Council, but this is not done by Statutory Instrument but in a form similar to that of a prerogative Order.

Controversial uses

Canada

An order-in-council made by the Brian Mulroney government on 21 November 1988 created AMEX Bank of Canada, although federal banking policy at the time would not ordinarily have permitted American Express to operate as a bank.

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, aliens of "enemy nationality". Between 1914 and 1920, 8,579 "enemy aliens" were detained in internment camps.

In July 2004 and August 30, 2006, Orders-in-Council were used to deny a passport to Abdurahman Khadr, a member of the infamous Khadr family, and who had previously been held in detention by the United States at Guantanamo Bay.

See also: Canadian passport: Refusal of passport

United Kingdom

Orders-in-Council were controversially used in 2004, to attempt to overturn a court ruling in England which held that the exile of the Chagossian islanders from the British Indian Ocean Territory was unlawful. However, the High Court, in 2006, held that these Orders-in-Council were unlawful, saying "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. The UK government's appeal failed, with the Court of Appeal holding that the decision had been unlawfully taken by a government minister "acting without any constraint".

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