united-kingdom
Can an Order in Council be quashed for being incompatible with the common law constitutional right?
<p>Imagine that a prerogative Order in Council is enacted and that it's incompatible
with an ECHR right that covers the same ground as a common law constitutional
right. The quotations beneath affirm that the Order in Council can't be quashed on the basis of its incompatibility
with the Convention right—but could it be quashed on the ground of its
incompatibility with the common law constitutional right?</p>
<h3>My question is above. The following is optional to read.</h3>
<blockquote>
<p>      Three further points should be noted regarding the distinction between primary
and subordinate legislation.<br />
      First, the HRA adopts, in one particularly significant respect, an unusually broad
definition of primary legislation. Section 21(1) states that, for the purposes of the
HRA, <em>Orders in Council enacted under the royal prerogative are to be treated as primary,
not subordinate, legislation.</em> 85 The practical effect of this is that such prerogative
legislation cannot be quashed if found incompatible with Convention rights. It can,
however, like an Act of Parliament, be the subject of a declaration of incompatibility
under s 4.<br />
      Categorising prerogative Orders in Council as primary legislation for HRA purposes
is anomalous.86 For present purposes, it is unnecessary to get bogged down
in the semantics of ‘primary’ and ‘subordinate’ legislation.87 The key point is that
the general constitutional position of prerogative Orders in Council is inconsistent
with that which they occupy in relation to the HRA. Orders in Council are not the
constitutional equals of Acts of Parliament: the former, unlike the latter, can usually
be quashed if they are unlawful. The normal principles of judicial review therefore
apply: if, for example, a prerogative Order in Council is unreasonable, or made for an
improper purpose, or adopted in breach of a legitimate expectation, it can be set aside
by the courts. Any doubt that may have existed on this point was put to rest by the
House of Lords in <em>Bancoult (No 2)</em>.88<br />
      This position is entirely correct in principle. In constitutional theory, prerogative
Orders in Council are acts of the Crown alone (meaning the executive), not of the
Crown-in-Parliament. Orders in Council are therefore not cloaked by the doctrine of
parliamentary sovereignty. Also, in constitutional practice, the prerogative is merely
a tool in the hands of the executive. There is therefore no good reason why its exercise
should be immune from judicial review—and every reason why it should be. Against
this background, it is highly dubious that while the courts can quash prerogative
Orders in Council if they fall foul of the normal principles of judicial review, they
cannot do so if they contravene the Convention rights.</p>
</blockquote>
<blockquote>
<p>85 See further Chapter 5, section 4.3.<br />
86 Pontin and Billings, ‘Prerogative Powers and the Human Rights Act: Elevating the Status of Orders in
Council’ [2001] PL 21.<br />
87 See generally McHarg, ‘What is Delegated Legislation?’ [2006] PL 539.<br />
88 <em>R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2)</em> [2008] UKHL 61, [2009]
1 AC 453.</p>
</blockquote>
<p>Mark Elliott, <em>Public Law</em> 2020 4 edn, p 790.</p>

<p>In the context of your question, no it cannot.</p>
<p>What your source is saying is that the Order in Council cannot be quashed because it is primary legislation. Whatever the OiC supposedly contravenes plays no role in that analysis (including your suggestion of &quot;common law constitutional right,&quot; assuming that even has a well-defined meaning in UK law). This is because the UK has a strong tradition of <a href="https://en.wikipedia.org/wiki/Parliamentary_sovereignty_in_the_United_Kingdom" rel="nofollow noreferrer">Parliamentary supremacy</a> and courts are not allowed to quash primary legislation of the Parliament.</p>
<p>What's unusual here is that Parliament specifically decided to elevate OiCs to the status of primary legislation with respect to the Human Rights Act 1998. Ordinarily, OiCs would otherwise be subject to quashing if they contravened primary legislation.</p>
