ORDERS-IN-COUNCIL.

Auckland Star, Volume LVII, Issue 132, 5 June 1926, Page 8

ORDERS-IN-COUNCIL.

It is one of the best known of all the principles of constitutional government that laws can be enacted. only with the consent of the representatives of the people, meeting for the purpose in the National Assembly or Parliament. Vet from the earliest daye of our history the Crown has always claimed to possess, and has frequently exercised, the power of issuing commands which, at least for the time being, have all the force of laws. The modern representative of such ordinances or proclamations is the Order-in-Council, and in view of the prominence which this method of legislation has recently attained in the Dominion as well as at Home it may interest our readers to observe its character and its limitations. Without going into the vexed question of the origin and nature of the royal prerogative, we may point out that, from the earliest period of our history, our kings from time to time issued ordinances which, though professing to be of a temporary nature, and calculated to meet some special emergency, were always liable to establish themselves permanently as part and parcel of the law of the land. Snch a system of government was clearly at variance with the fundamental principle of our Constitution, which claims for the representatives of the people a direct share in the making of our laws; and so strong wag the popular opposition to these ordinances that according to the best authorities on the growth of our Constitution they were abandoned by the Crown as early as the fifteenth century. But such an excuse for the exercise of arbitrary authority was always likely to be revived by monarchs who, temperamentally speaking, favoured absolutism. Accordingly we find that Henry VIIL and Elisabeth, James I. and Charles 1., all in turn endeavoured to evade their responsibility to Parliament or to the nation by issuing proclamations which were meant to be accepted as laws, and either to extend or to supersede older enactments. Once More Parliament and the people recognised in these encroachments a grievous menace to* their rights and liberties. Thus, in course of time proclamations like the Royal ordinances of the past were declared to be illegitimate exercises of the royal prerogative, and were in the seventeenth century so carefully limited and conditioned that they ceased from that time to threaten the polit,call privileges of the nation. In almost the same words we might summarise the history of the dispensing and suspending powers claimed by the Stuart kings who held themselves to be *°°T e . the 1»»- After the Revolution of 1688 it was no louger possible for the Crown to assert any such prerogative, and all that it now retains of the independent legislative authority that it once exercised is the right to i«u«-en-tht

advice of Ministers—Orders-in-Council which are intended to meet some sudden emergency, but which must be ratified as speedily as possible by Parliament But it is clear from the origin and the past history of such exercises of legislative authority by the Crown that in theory they are opposed to the principle of constitutional government, and in practice they have been in the past constantly criticised, condemned and limited by every conceivable safeguard that the representatives of the people could devise to secure the safety of the nation J against the possible encroachments of absolutism. What is the moral to be drawn from all this in regard to Orders-in-Council as issued to-day? Not that the power of the Crown is, by this practice, unduly enlarged—for Orders-in-Council are not issued by the Crown on its own initiative, but at the request and on the advice of the Ministry in office. Nor is it a reasonable inference that such emergency legislation should never be attempted or tolerated. For it is easy to conceive circumstances in which it i 3 necessary in the public interest for the Crown— that is, the Government of the country — to act promptly and vigorously, without waiting to consult Parliament. But in view of all the facts of the case it seems necessary to conclude that Orders--n-Council should be used sparingly, and only in case of some urgent public neces- ! sity, and that they should be submitted as soon a s possible to the consideration of Parliament.