Buckingham palace

An Order in Council giving effect to new parliamentary constituency boundaries across the UK will soon be approved by the King at a meeting of the Privy Council.

This Insight explains what an Order in Council is and why one is being used in this way.

What is an Order in Council?

An Order in Council is a type of legislation which is made in the name of the Monarch “by and with the advice and consent” of the Privy Council (officially the “King in Council”), although the text is drafted by the Government. The Privy Council is a body of advisers to the Monarch, including serving Cabinet ministers, which meets around once a month.

Types of Order in Council

There are three types of Order in Council.

Statutory orders

The Privy Council has delegated powers to make statutory orders, which have the same effect (and are published in the same way) as other delegated (or secondary) legislation, such as statutory instruments.

They are usually laid before Parliament and may be subject to the negative procedure or affirmative procedure.

The Order in Council giving effect to new constituency boundaries will be a statutory order. Other examples of statutory orders include those transferring responsibilities between government departments.

Prerogative orders

Prerogative orders are made under the inherent power of the Crown to act on matters that Parliament has not legislated on. They become primary legislation without being laid before Parliament. Examples include orders to prorogue Parliament.

Judicial orders

Judicial orders are the formal means by which decisions on appeals to the Judicial Committee of the Privy Council, a committee of the Privy Council comprising senior judges, are given effect in the form of advice to the sovereign. Examples include appeals from a Commonwealth Realm or a Crown Dependency.

Where and when Orders in Council are made

Orders in Council always say when and where they were made. If a Privy Council meeting is held at Buckingham Palace, then orders generally begin “At the Court at Buckingham Palace”, but orders may also be made wherever the King happens to be in residence.

Why are they used instead of secondary legislation?

It is not clear why some matters are legislated for via an Order in Council rather than by secondary legislation. The constitutional expert Rodney Brazier believed the reasons were “partly traditional and partly psychological”:

It is more dignified and impressive for an independence constitution, or an instrument giving effect to an extradition treaty or creating new parliamentary constituencies or altering electoral boundaries, to be made by Her Majesty in Council. Or so it seems to some people; and appearance is occasionally more important than reality, even if hardly anyone is misled by the ceremonial trappings.

The parliamentary boundaries order

The Order in Council giving effect to the new parliamentary boundaries will be made under section 2 of the Parliamentary Constituencies Act 2020.

The Government prepared the Order after the final four Boundary Commission reports were laid before Parliament on 28 June.

The Order must be submitted to the Privy Council for approval by the King “as soon as reasonably practicable” and “no later” than four months after the reports were laid (unless there are exceptional circumstances). This means there is a deadline of late October 2023.

Under previous legislation, four draft orders, one for each part of the UK, were produced after each boundary review, and either House of Parliament could veto them. But following the 2020 Act, only one draft boundaries order is produced for the whole UK and neither the Government nor Parliament can make any changes to it. Indeed, the draft order is not even debated in the Commons or Lords.

How will the Order be approved?

Only those Privy Counsellors summoned (usually Cabinet ministers) by the Lord President of the Council (currently Penny Mordaunt) attend a meeting of the Privy Council to approve an Order in Council, the quorum being three.

The date of a meeting is not announced in advance, although it will be included in the Court Circular (the official record of past royal engagements) once it has taken place.

There is no debate and very little discussion at a Privy Council meeting; the text of the Order is agreed in advance, and the Monarch’s approval for it – as with Royal Assent for primary legislation – is a formality.

After the Lord President has read out the title of the Order she will then pause, and the King will say “approved”. The Clerk of the Privy Council will then sign the Order to authenticate the Monarch’s assent.

What happens next?

Once the Order is made, the new constituency boundaries will be used following the next dissolution of Parliament, which must be by 17 December 2024, with the last possible day for the election being 28 January 2025.

The validity of such an order, once made, cannot be called into question in any legal proceedings.

Further reading

About the author: Dr David Torrance is a researcher at the House of Commons Library specialising in the monarchy.

Image: Mistervlad – stock.adobe.com

Related posts