Commentary on provisions of Act Section 4: Orders in Council
Orders in Council are used when an ordinary statutory instrument would be inappropriate, such as for transferring responsibilities between government departments. They are issued by and with the advice of His Majesty’s Privy Council and are approved in person by the monarch. It is long standing practice that P&I are conferred by Order in Council. Examples include section 1(2) of the 1968 Act and section 12(1) of the 2002 Act.
	Subsection (1) of this section provides that any Order in Council made under section 1 or 2 of the Act is subject to the draft affirmative Parliamentary procedure. Statutory instruments that are subject to the ‘draft affirmative procedure’ require the approval of both Houses of Parliament before they may have effect.
	Subsection (2) provides further detail as to the scope and extent of the delegated legislation making power under sections 1 and 2. In particular, it provides that an Order in Council:
may make different provision for different cases and for different persons; and
may contain consequential, supplementary, incidental, transitional or saving provision.
	This subsection (2) also provides the enabling power for two important aspects which are fundamental to the operation and management of P&I in respect of an international organisation. First, the Order in Council may specify circumstances where privileges, immunities or exemptions do not apply, whether because of an exception to those privileges, immunities or exemptions or because they have been waived by the organisation. Second, the Order in Council may specify that fiscal reliefs and exemptions are subject to arrangements or conditions imposed by the Secretary of State or the Commissioners of His Majesty’s Revenue and Customs (as the case may be). This will facilitate the application to the organisations of the existing administrative schemes and processes in respect of international organisations which are administered by, among others, the FCDO and HMRC.
	Subsection (2) also ensures that conferral of immunities, privileges and exemptions can be restricted in accordance with Government policy and that, where necessary, mitigations can be put in place in the exercise of the delegated powers to ensure they are being exercised in a way which is compatible with Convention rights. This may be particularly important in respect of concluding appropriate arrangements with the ICRC in the context of the treatment of confidential information.