Wednesday, 29 June 2011

The Privy Council

"It boasts a history stretching back to remote antiquity. It acquired power amidst all the dangers of a barbarous age. For a long period it contained all that was noblest in Enghsh political life. The Beauforts, the Bedfords, the Cromwells, the Cecils, and Walsinghams of England, found within it at once the sphere and the reward for their talents. The benefits which it conferred in periods when it was the real protector of the weak, the true 'poor man's court,' more than counterbalance the evils which it produced when in later ages it rose as the Star Chamber.... Our Parliaments and our Law Courts are but the outgrowth of the Council. In its history is seen how not only institutions but ideas assumed their modern form...."

That was Dicey, hitting his purple stride in his Arnold Prize essay of 1860 on the Privy Council.  That august body is the subject of this post.


History

The council was apparently already up and running by 1377, though the title 'Privy Council' dates from the reign of Henry V.  After the Glorious Revolution of 1688, the Privy Council was replaced as the monarch's advisory body by the Cabinet.  The Act of Settlement 1700 initially attempted to restore some of the Privy Council's old functions, but the relevant provisions were repealed before the Act came into operation (by the Security of the Succession, etc Act 1705).

In 1708, the Privy Council for Great Britain was formed from the merger of the old Privy Councils for England and Scotland.  The Privy Council for Ireland was superseded in 1922 by the Privy Council for Northern Ireland, a dormant body which ceased to meet in 1972 and currently has only five surviving members.  South of the border, the Privy Council was replaced by the President's Council of State.  Canada continues to have a Privy Council of its own.


Name

The full title or description of the Privy Council, according to the Interpretation Act 1978, is "the Lords and others of Her Majesty’s Most Honourable Privy Council".


Membership

Privy Counsellors (or Councillors) are appointed by the Queen on the advice of the Prime Minister from among British and Irish citizens.  According to Halsbury's Laws, candidates can be expected to be chosen from among "noblemen of high rank, persons who have held or hold high political, judicial or ecclesiastical office, distinguished politicians from other parts of the Commonwealth, persons eminent in science or letters or very senior civil servants".  The following persons are "generally understood to have a claim to appointment":
The near relatives of the monarch, the archbishops, the Prime Minister, the Lord Chancellor, the Speaker of the House of Commons, the Bishop of London, cabinet ministers, great officers of State and of Household, the Queen's Private Secretary, the Lords of Appeal in Ordinary [and presumably now the judges of the Supreme Court], the Lord Chief Justice, the Master of the Rolls, the President of the Family Division of the High Court of Justice, and the Lords Justices of Appeal....
It is said that the Archbishops of Canterbury and York claim membership of the Council by prescriptive right.

Cabinet ministers are obliged to be Privy Counsellors due to a statutory requirement that they take their oaths of office "in the presence of Her Majesty in Council" [Promissory Oaths Act 1868, s.5; Promissory Oaths Order 1939, art. 1].  Each Prime Minister is sworn in as First Lord of the Treasury (and head of the council's Treasury Board) at a Privy Council meeting separately from his or her appointment as PM.

There are currently 595 Privy Counsellors (if I've counted them correctly).  There were around 360 in the 1970s and around 40 back in Tudor times.  Counsellors normally serve for life, though John Profumo, John Stonehouse and Jonathan Aitken were all dismissed at their own request.  The vast majority of Privy Counsellors attend council meetings only on the marriage or death of the monarch.

Privy Counsellors are entitled to the style 'Right Honourable' and the postnominal initials 'PC'.  They take precedence after Knights of the Garter and of the Thistle, and next after the eldest sons of barons.


Functions

On 2 March 1995, the then Lord President of the Council, Tony Newton, said in answer to a parliamentary question:
The Privy Council advises the sovereign on the making of royal proclamations and Orders in Council, and on the grant and amendment of royal charters. It approves rules made by statutory registration councils responsible for the medical and certain other professions, and makes instruments of Government for higher education corporations. The Privy Council is also responsible for certain appointments to statutory councils and to the governing bodies of universities and colleges, and for the appointment of high sheriffs. The Judicial Committee of the Privy Council is the final Court of Appeal from courts of the United Kingdom dependencies and from courts of those independent Commonwealth countries which have retained the right of appeal. The committee also hears appeals from courts of the Channel Islands and the Isle of Man, and from the disciplinary and health committees of the medical and allied professions, together with some ecclesiastical appeals.
This description largely holds good today.

The Privy Council's formal decisions are expressed through two types of instrument:

Orders in Council.  These are broadly divided into statutory orders which are made under the authority of an Act of Parliament and prerogative orders which are made under the royal prerogative.  In a written parliamentary answer given on 13 March 2003, Robin Cook reported that 526 Orders in Council were made in 2002, 372 under statute and 154 under the prerogative: "The majority of Prerogative Orders related to the appointment of Ministers and Privy Councillors, the private affairs of Chartered bodies, and Channel Islands business. The majority of statutory Orders were confirmations of Church Commissioners' schemes under the Pastoral Measure 1983."  Orders in Council are not to be confused with an inferior class of Privy Council instruments called orders of council.

Proclamations.  These are used to summon, prorogue and dissolve Parliament, and to fulfil various other functions.

Another class of instruments closely connected with the Privy Council are royal charters.  The best known of these is the BBC Charter, but they also include numerous charters of universities, professional bodies, charities and so on.  Much of the day-to-day bureaucratic work of the Privy Council Office relates to these organisations.

The Privy Council also furnishes a pool of distinguished public figures who can be entrusted with sensitive inquiries under their oath of confidentiality.  The best known such inquiry in recent years was perhaps the Butler Review into the use of intelligence in the run-up to the Iraq War.

The Privy Council has various committees, including the Board of Trade, the Treasury Board, the Judicial Committee and committees on matters relating to Oxford and Cambridge, the Scottish universities, constitutional questions affecting the Channel Islands and the Isle of Man, the baronetage and honours.


Meetings

The Queen or other members of the royal family preside at meetings of the Privy Council ("the Queen in Council").
Since the time of Queen Victoria, the quorum for Privy Council meetings has been 3 Counsellors, though 4 are normally summoned by the Privy Council Office.  They are usually government ministers.

No discussion takes place, though it appears that the Queen may occasionally ask questions.  The attendees remain standing throughout (a custom which may go back to Queen Victoria).  The Lord President of the Council stands to the right of the sovereign and reads out the successive items of business.  The Queen responds in each case by saying simply: "Approved".


Recent work

There were 13 meetings of the Privy Council in 2008, 11 in 2009, just 6 in 2010, and 6 so far in 2011.

Business transacted so far this year has included:
  • Consenting to the wedding of Prince William and Kate Middleton.
  • Granting and approving amendments to royal charters.
  • Granting and amending statutes for Oxford and Cambridge Universities and their colleges.
  • Assenting to legislation for Jersey and Guernsey.
  • Issuing orders forbidding burials in certain churchyards.
  • Issuing orders implementing sanctions against Libya.
  • Issuing a proclamation regarding souvenir coins for the 2012 Olympics.
  • Amending the Misuse of Drugs Act 1971.
  • Appointing Chris Patten as Chairman of the BBC Trust.
  • Approving legislation passed by the National Assembly of Wales.
  • Issuing orders under the Immigration Act 1971, the Copyright Act 1988 and the Extradition Act 1989.

The Lord President and the Privy Council Office

The Lord President of the Council is the fourth of the Great Officers of State.  He is generally a Cabinet minister, and is frequently the Leader of the House of Commons or the House of Lords.  The current Lord President is Nick Clegg.

The Lord President is the head of the Privy Council Office, though the Office is run on a day-to-day basis by the Clerk and the Deputy Clerk of the Council.


Criticism

Criticism of the Privy Council is inextricably bound up with criticism of the powers that it wields.  The normally sober Halsbury's Laws states: "In the exercise of the manifold powers entrusted to it by statute the Privy Council acts largely as a secondary legislative chamber complementary to Parliament".  A report on the Privy Council by the pressure group Justice - a document with some polemical aspects - was concerned in addition about the use of the royal prerogative.

The last word should probably go to the Rt. Hon. the Lord Hattersley PC, who is no friend of the Privy Council:
At worst the privy council is neither an instrument of baronial tyranny nor the last bastion of monarchist power.... The usual complaint against it... is that it is the institution through which orders in council are made and the royal prerogative exercised - both potential abuses of our parliamentary system. But the blame lies with ministers....  Do not blame "the Queen in council". Power lies with politicians. So does the opportunity for power's abuse.