Order-in-Council
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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-General-in-Council, Governor-in-Council) in other Realms, Canadian provinces, Australian states, or British Overseas Territories.
Two different types of Order-in-Council exist: A distinction must be made between 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. The first type is an exercise of the Royal Prerogative: as such it is primary legislation and does not depend on any statute for its authority, although it may be overridden by an Act of Parliament (Council of Civil Service Unions v. Minister for the Civil Service [1985] 374 at 399, per Lord Fraser of Tullybelton). 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.
In this second case, an Order-in-Council is merely another form of statutory instrument (regulated by the Statutory Instruments Act 1946 in the UK), 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 and from 2007 legislation put before the Welsh Assembly will be enacted through Orders-in-Council after following the affirmative resolution procedure.
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.
Whilst the Northern Ireland Assembly remains suspended, much Northern Ireland legislation is made by Order-in-Council. This is done under the various Northern Ireland Acts 1974 to 2000, and not in virtue of the Royal Prerogative.
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.
Although the Orders are nominally made by the Queen or her representative, her assent is now normally purely a formality. 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 representative, 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-General or Lieutenant-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.
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)).
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.
In Hong Kong, "Governor in Council" was replaced by "Chief Executive in Council".
[edit] Controversial uses
In Canada, in July, 2004, an Order-in-Council was 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. Though Khadr was never convicted of a crime, Foreign Affairs Minister Bill Graham deemed Khadr a threat to Canadian security, and advised Governor General Adrienne Clarkson to invoke the Royal Prerogative and issue an Order-in-Council denying Khadr a passport. Khadr challenged this decision in court, claiming it was a violation of the Charter of Rights and Freedoms, however the courts only ruled that he had been denied a passport on "dubious grounds", and though the court did state Khadr could re-apply for a passport, it did not rule that the Government must issue him one. On August 30, 2006, Khadr's application was again denied by Governor General Michaëlle Jean, on the advice of Minister of Foreign Affairs Peter MacKay.[1]
Orders-in-Council were controversially used in 2004 to attempt to overturn a court ruling in England which held that the exile of the Ilois 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." [2]
