Constitution 101: The Privy Council

In honor of the fact that Jeremy Corbyn has finally joined the Privy Council, I thought I’d provide a brief overview of this fascinating corner of the British constitution.

‘Her Majesty’s Most Honourable Privy Council’ is one of the United Kingdom’s oldest organs of government. Its origins lay in the Curia Regis (Royal Council) of the post-Conquest Norman kings, which combined executive, legislative, and judicial functions. At first, there was little distinction between Council and Parliament, but by the fourteenth century, the Council emerged as a discrete entity. Although its judicial and legislative roles were gradually supplanted by Parliament and the courts, Council business would continue to cut across all three branches of government.

The Tudor-Stuart period was arguably the Council’s golden age. In the reign of Henry VIII, Parliament gave the King-in-Council the power to legislate by proclamation.[1] Later, the Council would assist Charles I with his creative fundraising attempts, and its judicial arm (the Court of Star Chamber) became a byword for oppression.

After the fall of the Monarchy in 1649, the Rump Parliament replaced the Privy Council with a Council of State chosen by MPs. At first, the Council served as the Commonwealth’s executive government, but in 1653, Parliament made Oliver Cromwell Lord Protector, and the Council of State was retooled as his Privy Council. Its members were still chosen by Parliament until 1657 when Cromwell gained the ability to appoint Privy Counsellors (however, they were still subject to parliamentary confirmation). When the Protectorate ended in 1659, the Council of State was revived. The army tried to suppress it, but the Council went on to govern the nation during the period between the dissolution of the Long Parliament and the meeting of the Convention Parliament. A month later, the Council of State was dissolved for good when Charles II arrived in London.

The Privy Council was revived along with the Monarchy, but it was no longer as powerful. The abolition of the Star Chamber was never reversed, and the reign of Charles II saw more and more business handled by specialized committees instead of the full Council (this development would ultimately lead to the modern Cabinet). Now that the Sovereign was supposed to act on the advice of ministers who were accountable to Parliament, the Council’s role became increasingly formal. However, it never fell into desuetude. The Cabinet might have supplanted the Council as a deliberative body, but the Council remained the venue for the exercise of many royal powers.

Nowadays, the Privy Council is an enormous body (there are currently several hundred Counsellors!). Membership is effectively for life, and appointments are made by the Queen on the recommendation of the Prime Minister. Most Privy Counsellors are politicians–members of the Cabinet always join the Council,[2] and a handful of junior ministers usually do, too. Other people who customarily receive Privy Counsellorships are the Speakers of both Houses of Parliament, senior Church of England bishops,[3] justices of the Supreme Court and Court of Appeal, and certain members of the Royal Household.[4] Upon appointment, Privy Counsellors must take a rather lengthy oath. The oath is administered while kneeling, and the new Counsellor is expected to kiss the Queen’s hand afterward.[5]

The Privy Council’s main function is the making of Orders in Council. These can be executive (e.g., calling a new Parliament), legislative (e.g., granting a constitution to a British Overseas Territory), or judicial (e.g., approving judgments of the Judicial Committee of the Privy Council) in nature. The breadth of Council business is truly astounding. At any given meeting, it might concern itself with subjects as diverse as coinage, legislation from the Channel Islands, economic sanctions, education, and graveyards.[6]

The Council also serves as a court of appeal, though cases are actually decided by a panel of judges sitting as the Judicial Committee of the Privy Council. The Judicial Committee’s jurisdiction within the United Kingdom is quite limited and includes certain admiralty matters and appeals from the ecclesiastical courts in non-doctrinal faculty cases (oddly, it also hears appeals against decisions of the Disciplinary Committee of the Royal College of Veterinary Surgeons!). The Judicial Committee’s overseas jurisdiction is much more extensive. It serves as the final court of appeal for a few Commonwealth countries (e.g., Jamaica, Kiribati),[7] Crown dependences (e.g., the Channel Islands and the Isle of Man), and British Overseas Territories (e.g., the Falkland Islands).

The Privy Council meets roughly once a month wherever the Queen happens to be.[8] Four Counsellors usually attend each meeting, though the actual quorum is three.[9] In practice, only Counsellors who are part of the Government will be summoned to a meeting.[10] Proceedings are entirely formal in nature: the Lord President of the Council[11] reads a list of Orders, and Her Majesty periodically says “approved.” The whole thing usually takes less than 15 minutes unless there are extra formalities such as the swearing in of new Privy Counsellors or Ministers. Since the reign of Victoria, everyone at the Council (including the Sovereign) has remained standing throughout the meeting, allegedly in order to keep things as brief as possible. Despite the emphasis on secrecy in the Privy Counsellor’s oath, meetings of the Council are matters of public record. They are recorded in the Court Circular, and the Orders approved at each meeting are published on the Council’s website.[12]

The Privy Council’s legacy can be seen throughout the Commonwealth. When Britain’s territories achieved responsible government, the Sovereign’s representative was usually provided with a body of advisors modeled on the Privy Council. Most of these bodies are called ‘Executive Councils,’ though Canada and Jamaica continue to use the same terminology as the mother country.[13] From Ottawa to Auckland, these Councils are a reminder that the Crown’s power is limited.

NOTES

[1] 31 Henry 8 c. 8. The statute was repealed in 1547. Its precise effects have been a subject of some debate among scholars.

[2] For a discussion of why this is the case, see my recent post about Jeremy Corbyn and the Privy Council.

[3] E.g., the Archbishops of Canterbury and York and the Bishop of London.

[4] E.g., the Queen’s Private Secretary and the Lord Chamberlain.

[5] Some have found this ceremony chafing. Describing his own admission to the Council, Richard Crossman said that “I don’t suppose anything more dull, pretentious, or plain silly has ever been invented.” See Crossman, The Diaries of a Cabinet Minister, vol. 1. (New York: Holt, Rinehart, and Winston, 1975), 29.

[6] The business from the meeting held on June 10 is a pretty good sample of the Council’s work.

[7] At one time, the Council heard appeals from almost all Commonwealth countries, but most of them have now set up their own Supreme Courts.

[8] One meeting was even held at Heathrow!

[9] The origins of the quorum are a bit hazy, and it’s not clear if it’s a matter of custom or law.

[10] The only non-Minister who attends with any regularity is the Queen’s Private Secretary. The reasons for his attendance aren’t always clear, but it seems likely that they are only summoned when there aren’t enough Ministers to ensure a quorum.

[11] The Lord President is the Council’s presiding officer. They are always a Cabinet minister, and the post is usually combined with the leadership of the Commons or the Lords. However, during the Conservative-Liberal Democrat coalition of 2010-15, Deputy Prime Minister Nick Clegg served as Lord President. Although the office of Lord President itself is something of a sinecure, it ranks highly in the official order of precedence.

[12] Orders that are also statutory instruments (i.e., they exercise powers conferred on the Queen-in-Council by Act of Parliament) are published on the Government’s legislation site instead of the Privy Council website.

[13] Although many of these Councils follow the British practice of having formal meetings in the presence of the Crown’s representative, others have abandoned this practice. For example, the Canadian Privy Council only meets on very rare occasions, and its day-to-day business is conducted by written instrument.

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3 Responses to Constitution 101: The Privy Council

  1. Mark Roth says:

    I would imagine that Cabinet Ministers or the Cabinet as a whole approves major decisions, but who decides which graveyards to close and whether an organization receives a royal charter?

    • jasonloch says:

      Thanks for the question, Mark. The decision to close a graveyard is made by the Secretary of State for Justice in accordance with section 1 of the Burial Act 1853, while the decision to award a royal charter is made by a committee of Privy Counsellors. Unfortunately, I haven’t been able to find much information about the composition of these committees, but I would assume they are chaired by the relevant minister (e.g., the Health Secretary would chair a committee that is considering a charter for a healthcare-related organization).

  2. Pingback: Why Did The Queen Hold A Privy Council At Heathrow? | A Venerable Puzzle

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