Describe and illustrate orders in council

Authority has been granted by the Emergency Powers Act 1920 and the Civil Contingencies Act 2004 for legislation to be introduced by an Order in Council.

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Acts of Parliament or statutes are a major source of legislation in England and Wales.  Such acts are considered to be primary legislation.  Draft legislation is introduced in the form of a bill which then goes through a series of stages commencing with the First Reading.  These stages or processes are conducted in both Houses of Parliament and once the final debate has taken place and provided the Bill is approved it is then passed to the Queen for her Royal Assent. It is unlikely for the Bill not to be approved once it has reached the final debate stage.

There are very good reasons for subjecting proposed legislation to such public debate and scrutiny, not least being the fact that it recognises the sovereignty of Parliament to legislate.  It is also a fundamental part of our democratic system.

However there are occasions when it is simply not possible to legislate in this way.  There are times, such as during the summer recess, when Parliament is unable to conduct formal business as it is not sitting.  Similarly, in times of emergency, the elaborate process through which draft legislation is submitted would not be appropriate. In these times legislation can be introduced by an Order in Council.

Authority has been granted by the
Emergency Powers Act 1920 and the Civil Contingencies Act 2004 for legislation to be introduced by an Order in Council.  This power is to be exercised in times of emergency and when Parliament is not sitting.

Under this power draft legislation is drawn up by a government department and approved by the Privy Council
and signed by the Queen. The Privy Council is made up of around 550 members. It includes all members of the Cabinet, past and present, the Speaker, the leaders of all major political parties, Archbishops and various senior judges as well as other senior public figures. The earliest Privy Council records date from 1386, when it was known as the King's Council. The Privy Council now assumes the role of advising the Queen in carrying out her duties as Monarch. Their meetings take place in the presence of the Queen, or one of her Counsellors in State if she cannot attend, and the Lord President of the Council, a senior government minister. Meetings are usually held at Buckingham Palace but can be held at other royal residences if the monarch is staying at another Palace. There are about nine meetings of the Queen and the Privy Council throughout the year.

It could be argued that Orders in Council are undemocratic and, to a large extent, they are in that the power rests with a small group and is far removed from the close scrutiny and debate reserved for legislation passing through Parliament.

On the other hand it could be said that such emergency legislation is drafted by government departments so the legislation is likely to achieve what it set out to do and is therefore effective.  It could also be said that as the members of the Privy Council are made up of leading members of the government there is accountability as those individuals are ultimately answerable to Parliament. Orders in Council will state when and where they were made. This would usually be Buckingham Palace as it is where Privy Council meetings would generally be held.

This form of delegated legislation effectively allows the government to introduce legislation without the approval of Parliament. There is also authority to give effect to EU proposals under the
European Communities Act 1972.

Examples of Orders in Council and their use include the giving effect to European Directives.  Directives are binding upon the national country with regard to the result to be achieved but it is left to the individual member state to implement the directive within a set time-scale.  


Orders in Council have been used in times of emergency such as the fuel crisis in September 2000 when the government controlled fuel supplies. Another example would be at times of war as was the case with the Gulf war and subsequent invasion of Iraq.

Occasionally Orders in Council will be used to introduce other laws of general application.  This was the case with the
Misuse of Drugs Act 1971 and enables the Home Secretary to amend the lists of drugs within each class by order without having to pass an act through both Houses of Parliament.

Orders in Council are used when an ordinary Statutory Instrument would be inappropriate, for example when transferring responsibilities between government departments. Orders in Council are issued "by and with the advice of Her Majesty's Privy Council". ” and are made under powers given in a parent Act.

 

To clarify the difference between Orders in Council and Orders of Council, Orders in Council are Orders that have been approved at a meeting of the Privy Council personally by The Queen. Orders of Council are Orders which do not require personal approval by The Queen, but which can be made by “The Lords of the Privy Council” .

 



Orders in Council - Privy Council Office - independent.gov.uk

Sweeping powers open to ministers in times of crisis ... - The Guardian

Civil rights group urges reform of 'rag-bag' privy council - The Guardian

Privy Council since 1386 | The National Archives

 



 

This essay describes and illustrates Orders in Council and includes references to the following matters:

  • authority under the Emergency Powers Act 1920 and the Civil Contingencies Act 2004;
  • the sovereignty of Parliament;
  • times of emergency and when Parliament is not sitting;
  • the Privy Council and the Queen;
  • examples of Orders in Council.