Prerogative orders

An Order in Council made under the royal prerogative does not depend on any statute for its authority, although an Act of Parliament may change this.^[3] This type has become less common with the passage of time, as statutes encroach on areas that 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 the prorogation of Parliament, royal charters, and the governance of British Overseas Territories.

British Orders in Council may occasionally be used to effectively reverse court decisions or enforce British law applicable to British Overseas Territories without involving Parliament such as the Caribbean Territories (Abolition of Death Penalty for Murder) Order 1991. 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 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.

It was long thought that prerogative orders, being primary legislation, were not subject to judicial review. This was reversed in the 1985 case Council of Civil Service Unions v Minister for the Civil Service, which however allowed for some exceptions, such as national security. A given prerogative order therefore may or may not be subject to judicial review, depending on its nature.

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. Like all statutory instruments, they may simply be required to be laid before both Houses of Parliament, or they may 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 or, exceptionally, both Houses ('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: "His Majesty, in pursuance of [relevant section of primary legislation], is pleased, by and with the advice of His Privy Council, to order, and it is hereby ordered, as follows:"

Section 20(1) of the Civil Contingencies Act 2004 allows the King in Council to exercise a measure of legislative power in the event of an emergency.

Other matters dealt with by statutory Orders in Council include the closure of burial grounds under the Burial Act 1853, approval of statutes made by Oxford or Cambridge colleges under the Universities of Oxford and Cambridge Act 1923, and the appointment of HM Inspectors of Education, Children's Services and Skills under the Education and Inspections Act 2006.

For most of the period from 1972 to 2007, much Northern Ireland legislation was made by Order in Council as part of direct rule. This was done under the various Northern Ireland Acts 1974 to 2000, and not by virtue of the royal prerogative.

Under the Government of Wales Act 2006, royal assent to Measures of the National Assembly for Wales was given by Order in Council, but this is not done by statutory instrument but in a form similar to that of a prerogative order.^[4] The National Assembly became the Senedd (Welsh Parliament; Welsh: Senedd Cymru) in 2020, at the same time gaining the competence to pass Acts of Senedd Cymru, assent to which is given by letters patent without requiring the involvement of the Privy Council.

Canada

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.^[5]

During the Second World War, the Soviet newspaper Trud accused poet and university professor Watson Kirkconnell, who was known to be both a Ukrainophile and a publicist of human rights abuses under Stalinism, of being "the Führer of Canadian Fascism".^[6] It is now well documented that Canadian Prime Minister Mackenzie King seriously considered acting to protect the Soviet-Canadian military alliance against Nazi Germany by silencing Kirkconnell with an Order-in-Council.^[7]

An Order in Council made by the Brian Mulroney government on 21 November 1988 created Amex Bank of Canada, a Canadian banking subsidiary of American Express, although federal banking policy at the time would not ordinarily have permitted such an establishment by a foreign company.^[8]

In July 2004 and August 2006, Orders in Council were used to deny a passport to Abdurahman Khadr, a member of the Khadr family who had previously been held in detention by the United States at Guantanamo Bay, on the grounds of national security. The first was overturned on judicial review by the Federal Court^[9] as, at the time of his application, national security was not included as a ground for refusal in the Canadian Passport Order,^[10] which was since amended to include the ground.

In July 2017, the government of Canada used an Order in Council to strip ex-Nazi interpreter Helmut Oberlander of his Canadian citizenship.^[11]

On May 1, 2020, an Order in Council was used to declare over 1500 models of firearm to be prohibited weapons, in response to the 2020 Nova Scotia attacks.^[12] The order immediately nullified the existing registrations of ownership for all the weapons it affected, making it illegal for owners to possess, use, transport, or sell them except in a few limited circumstances.^[13] A second Order in Council was simultaneously passed declaring an amnesty period until April 30, 2022, in which time owners of newly-prohibited firearms could have them deactivated, destroyed, or exported to a country in which they could be legally owned.^[14]

United Kingdom

Orders in Council were controversially used in 2004 to overturn a court ruling in the United Kingdom^[15] that held that the exile of the Chagossians from the British Indian Ocean Territory (BIOT) was unlawful. Initially, the High Court in 2006 held that these Orders in Council were unlawful: "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."^[16] The UK government's first appeal failed, with the Court of Appeal holding that the decision had been unlawfully taken by a government minister "acting without any constraint".^[17] However, the government successfully appealed to the House of Lords, which overturned the High Court and Court of Appeal decisions (R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Bancoult (No 2)).^[18] The Law Lords decided^[15] that the validity of an order in council made under the prerogative legislating for a colony was amenable to judicial review.^[19] Also, it was not for the courts to substitute their judgement for that of the Secretary of State as to what was conducive to the peace, order and good government of the BIOT. The orders were not Wednesbury unreasonable on the facts, given the considerations of security and cost of resettlement. Finally, none of the orders was open to challenge in the British courts on the ground of repugnancy to any fundamental principle relating to the rights of abode of the Chagossians in the Chagos Islands.