1911 Encyclopædia Britannica/Order in Council

ORDER IN COUNCIL, in Great Britain, an order issued by the sovereign on the advice of the privy council, or more usually on the advice of a few selected members thereof. It is the modern equivalent of the medieval ordinance and of the proclamation so frequently used by the Tudor and Stewart sovereigns. It is opposed to the statute because it does not require the sanction of parliament; it is issued by the sovereign by virtue of the royal prerogative. But although theoretically orders in council are thus independent of parliamentary authority, in practice they are only issued on the advice of ministers of the crown, who are, of course, responsible to parliament for their action in the matter. Orders in council were first issued during the 18th century, and their legality has sometimes been called in question, the fear being evidently prevalent that they would be used, like the earlier ordinances and proclamations, to alter the law. Consequently in several cases parliament has subsequently passed acts of indemnity to protect the persons responsible for issuing them, and incidentally to assert its own authority. At the present time the principle seems generally accepted that orders in council may be issued on the strength of the royal prerogative, but they must not seriously alter the law of the land.

The most celebrated instance of the use of orders in council was in 1807 when Great Britain was at war with France. In answer to Napoleon’s Berlin decree, the object of which was to destroy the British shipping industry, George III. and his ministers issued orders in council forbidding all vessels under penalty of seizure to trade with ports under the influence of France. Supplementary orders were issued later in the same year, and also in 1808. Orders in council are used to regulate the matters which need immediate attention on the death of one sovereign and the accession of another.

In addition to these and other orders issued by the sovereign by virtue of his prerogative, there is another class of orders in council, viz. those issued by the authority of an act of parliament, many of which provide thus for carrying out their provisions. At the present day orders in council are extensively used by the various administrative departments of the government, who act on the strength of powers conferred upon them by some act of parliament. They are largely used for regulating the details of local government and matters concerning the navy and the army, while a new bishopric is sometimes founded by an order in council. They are also employed to regulate the affairs of the crown colonies, and the lord-lieutenant of Ireland, the viceroy of India, the governor-general of Canada, and other representatives of the sovereign may issue orders in council under certain conditions.

In times of emergency the use of orders in council is indispensable to the executive. In September 1766, a famine being feared, the export of wheat was forbidden by an order in council, and the Regulation of the Forces Act 1871 empowers the government in a time of emergency to take possession of the railway system of the country by the issue of such an order.