Tucked away in the list of orders approved at the April 24 meeting of the Privy Council is a curious entry:
It is this day ordered by Her Majesty in Council that the name of Sir Seamus Treacy be removed from the List of Her Majesty’s Most Honourable Privy Council, at his own request.
A Privy Counsellorship is usually a lifetime appointment, and it’s exceedingly rare for someone to relinquish it. In fact, it’s only happened nine times in the past 200 years. Before Sir Seamus, Lord Prescott was the last person to resign from the Council (his 2013 resignation was an act of protest over the Council’s delay in granting the Royal Charter on Self-Regulation of the Press). Others have been forced out–in 2011, Elliot Morley, formerly MP for Scunthorpe, was expelled following his conviction for false accounting in the parliamentary expenses scandal.
What makes Sir Seamus’s resignation even more unusual is that he only joined the Council in February. Why would someone resign after just two months? While there’s been no official word on the subject, Sir Seamus’s past may provide some clues. When he was made Queen’s Counsel in 1999, he went to court to avoid having to make the customary declaration of office because, as an Irish nationalist, he did not want to promise to “well and truly serve Her Majesty Queen Elizabeth II.” If Sir Seamus objected to the QC’s declaration of office, he would probably have been equally discomfited by the Privy Council oath given its full-throated pledge of loyalty to the Sovereign. The fact that he was appointed to the Council by Order but never actually took the oath may lend credence to this notion.
Despite Sir Seamus’s political views, his appointment to the Council would have been automatic. He is a Lord Justice of Appeal in Northern Ireland, and appellate judges from all of the UK’s jurisdictions are made Privy Counsellors so they can take part in the work of the Judicial Committee of the Privy Council if necessary. It would be interesting to know if Sir Seamus was given an opportunity to decline the Privy Counsellorship, or if it was presented to him as a fait accompli.
If it’s true that Sir Seamus left the Council because of his nationalist views, it may be prudent to reconsider the practice of automatically conferring Privy Counsellorships on Lord Justices of Appeal from Northern Ireland. Since the Good Friday Agreement, Westminster has been forced into a delicate balancing act where the Crown is concerned. Northern Ireland has Queen’s Counsel, but they no longer promise to “well and truly serve” her. The Queen grants Royal Assent to legislation passed by the Northern Ireland Assembly, but MLAs don’t swear allegiance to her. Her Majesty appoints judges in Northern Ireland, but the Royal Arms aren’t displayed in most courtrooms.
Against this backdrop, should a nationalist judge really be expected to take an oath that pledges them to “assist and defend all civil and temporal Jurisdictions, Pre-eminences, and Authorities, granted to Her Majesty”? The Crown has already been removed from most oaths in Northern Ireland in the interests of community cohesion. Besides, it’s not necessary to have all Lords Justices of Appeal from Northern Ireland on the Privy Council. Most of the day-to-day work of the Judicial Committee is done by the Justices of the Supreme Court and, since appellate judges from the United Kingdom’s other jurisdictions are also appointed to the Council, there are plenty of other judges who could pitch in if need be. It might be better if Northern Irish Lords Justices of Appeal were invited to join the Privy Council rather than being appointed automatically. This way, those who wished to have the honor could have it, while those who found it objectionable wouldn’t be placed in the same awkward position as Sir Seamus.
 Most Privy Counsellors take the oath right away, but it’s possible for the Queen to appoint someone to the Council by Order and allow them to take the oath at a more convenient time.