Decisions of the Privy Council are recorded in Orders which have the force of law. Such Orders come in many forms, but the basic distinction is between Orders in Council and Orders of Council.
Orders in Council
Orders in Council are Orders that have been approved at a meeting of the Privy Council personally by The Queen. They fall into two broad categories, statutory and Prerogative.
Statutory Orders are made under any of the numerous powers contained in Acts of Parliament which give Her Majesty a power to make Orders.
Prerogative Orders are made under the inherent power of the Crown to act on matters for which Parliament has not legislated.
Most statutory Orders in Council are Statutory Instruments. Under section 1 of the Statutory Instruments Act 1946 every power to make an Order in Council conferred by an Act of Parliament passed after 1 January 1948 must be a Statutory Instrument. Statutory Instruments are numbered in a standard series and published by The Stationery Office. They are available online at www.legislation.gov.uk.
Some statutory Orders are made under Acts that predate the 1946 Act, and are not Statutory Instruments. Examples are Orders made under the Naval and Marine Pay and Pensions Act 1865 (which determine the pay of the Navy) and the Burial Act 1853 (which provide for the closure of churchyards which no longer have room for burials).
Orders in Council always say when and where they were made. As Privy Council meetings are usually held at Buckingham Palace Orders generally begin “At the Court at Buckingham Palace”, but Orders may also be made at Windsor Castle, Balmoral, Sandringham, and on one occasion, Heathrow.
Orders of Council
These are Orders which do not require personal approval by The Queen, but which can be made by “The Lords of the Privy Council” (that is, Ministers). These can be statutory or Prerogative. Whether statutory Orders are also Statutory Instruments depends on the wording of the particular Act under which they are made.
Examples of statutory Orders of Council include approval of regulations made by the General Medical Council and other regulatory bodies. Statutory Instruments are numbered in a standard series and published by The Stationery Office. They are available online at www.legislation.gov.uk.
Examples of prerogative Orders of Council include approval of amendments to the By-laws of Chartered bodies.
Acts giving a power to the Privy Council to make an Order will usually specify the quorum of the Privy Council required to exercise it, often two. Where the Act is silent on this point the quorum of the Privy Council is three.
All Orders of Council are expressed to have been made at “The Council Chamber, Whitehall”, though in fact they are all approved in correspondence, and no actual meeting takes place.
Statutory Orders may also involve a Parliamentary procedure. Different Acts have different provisions, but Orders may need to be laid before Parliament in draft before being made, or after they have been made. The Act may also require the Order to be approved by Parliament before it comes into force.