Privy Council (United Kingdom)

Her Majesty's Most Honourable Privy Council, usually known simply as the Privy Council, is a formal body of advisers to the Sovereign in the United Kingdom. Its membership is mostly made up of senior politicians who are (or have been) members of either the House of Commons or the House of Lords.

The Privy Council, the modern-day successor to the Privy Council of England, was formerly a powerful institution, but its policy decisions are now exclusively in the hands of one of its committees, the Cabinet. The Council formally advises the Sovereign on the exercise of the Royal Prerogative, and together (as the Queen-in-Council) they issue executive instruments known as Orders in Council, which amongst other things are used to make Regulations. The Council by itself also has a delegated authority to issue Orders of Council, which are mostly used to regulate certain public institutions. The Council also advises the Sovereign on the issuing of Royal Charters, which are used to grant special status to incorporated bodies, and city or borough status to local authorities.

Certain judicial functions are also performed by the Queen in Council, although in practice the actual work of hearing and deciding upon cases is carried out exclusively by the Judicial Committee of the Privy Council. The Judicial Committee consists of senior judges appointed as Privy Counsellors: Justices of the Supreme Court of the United Kingdom, judges of the Court of Appeal of England and Wales, judges of the Court of Appeal in Northern Ireland, judges of the Inner House of the Court of Session (the supreme civil court in Scotland), and judges from various other Commonwealth member states. The Council was formerly a supreme court of appeal for the entire British Empire (other than for the United Kingdom itself), and continues to hear appeals from the Crown Dependencies, the British Overseas Territories, and a number of Commonwealth member countries.

History

Further information: English law, History of England, and Privy Council of Scotland

The witenagemot was an early equivalent to the Privy Council. During the reigns of the Norman monarchs, the English Crown was advised by a royal court or Curia Regis, which consisted of magnates, ecclesiastics and high officials. The body originally concerned itself with advising the Sovereign on legislation, administration and justice. Later, different bodies assuming distinct functions evolved from the court. The courts of law took over the business of dispensing justice, while Parliament became the supreme legislature of the kingdom. Nevertheless, the Council retained the power to hear legal disputes, either in the first instance or on appeal. Furthermore, laws made by the Sovereign on the advice of the Council, rather than on the advice of Parliament, were accepted as valid. Powerful Sovereigns often used the body to circumvent the courts and Parliament. For example, a committee of the Council—which later became the Court of the Star Chamber—was during the fifteenth century permitted to inflict any punishment except death, without being bound by normal court procedure. During Henry VIII's reign, the Sovereign, on the advice of the Council, was allowed to enact laws by mere proclamation. The legislative pre-eminence of Parliament was not restored until after Henry VIII's death. Though the royal Council retained legislative and judicial responsibilities, it became a primarily administrative body. The Council consisted of forty members in 1553, but the Sovereign relied on a smaller committee, which later evolved into the modern Cabinet.

By the end of the English Civil War, the monarchy, House of Lords and Privy Council were abolished. The remaining house of Parliament, the House of Commons, instituted a Council of State to execute laws and to direct administrative policy. The forty-one members of the Council were elected by the Commons; the body was headed by Oliver Cromwell, the de facto military dictator of the nation. In 1653, however, Cromwell became Lord Protector, and the Council was reduced to between thirteen and twenty-one members, all elected by the Commons. In 1657, the Commons granted Cromwell even greater powers, some of which were reminiscent of those enjoyed by monarchs. The Council became known as the Protector's Privy Council; its members were appointed by the Lord Protector, subject to Parliament's approval.

In 1659, shortly before the restoration of the monarchy, the Protector's Council was abolished. Charles II restored the royal Privy Council, but he, like previous Stuart monarchs, chose to rely on a small committee of advisers. Under George I even more power passed to this committee. It now began to meet in the absence of the Sovereign, communicating their decisions to him after the fact. Thus the Privy Council, as a whole, ceased to be a body of important confidential advisers to the Sovereign; the role passed to a committee of the Privy Council, now known as the Cabinet.

Origin of the term

According to the Oxford English Dictionary, the definition of the word privy in Privy Council is an obsolete one meaning "of or pertaining exclusively to a particular person or persons, one's own;" hence the council is personal to the sovereign. It is closely related to the word private.

Composition

The Sovereign, when acting on the Council's advice, is known as the "King-in-Council" or "Queen-in-Council". The members of the Council are collectively known as "The Lords of Her Majesty's Most Honourable Privy Council" (sometimes "The Lords and others of ..."). The chief officer of the body is the Lord President of the Council, who is the fourth highest Great Officer of State, a member of the Cabinet, and normally, the Leader of either the House of Lords or the House of Commons. Another important official is the Clerk, whose signature is appended to all orders made in the Council.

Both "Privy Counsellor" and "Privy Councillor" may be correctly used to refer to a member of the Council. The former, however, is preferred by the Privy Council Office, emphasising English usage of the term "Counsellor" as "one who gives counsel", as opposed to "one who is a member of a council." A Privy Counsellor is said to be "sworn of" the Council when he or she first joins it.

The Sovereign may appoint anyone a Privy Counsellor, but in practice appointments are made only on the advice of the Government, and generally consist only of senior members of parliament, the church and judiciary. There is no limit to the numbers sworn in as members. As of January 2012 there are about 600 members. However, the members have no right to attend all meetings of the Privy Council, and only some are summoned to each meeting (in practice at the Prime Minister's discretion).

The Church of England's three senior bishops—the Archbishop of Canterbury, the Archbishop of York and the Bishop of London are made Privy Counsellors on their appointment. Senior members of the Royal Family may also be appointed—Prince Philip is a member, the most senior at present in terms of service, and is the only present member not to be appointed by the current monarch, having been appointed to the council by her father. The Private Secretary to the Sovereign is always appointed to the Council, as is the Lord Chamberlain, the Speaker of the House of Commons, and the Lord Speaker.

Several senior judges—Justices of the Supreme Court of the United Kingdom, judges of the Court of Appeal of England and Wales, judges of the Court of Appeal in Northern Ireland and judges of the Inner House of the Court of Session (the highest court in Scotland)—are also named to the Privy Council.

The bulk of Privy Counsellors, however, are politicians. The Prime Minister, ministers in the cabinet, and the Leader of the Opposition must be sworn of the Privy Council on appointment. Leaders of large parties in the House of Commons, First Ministers of the devolved assemblies, some senior ministers outside the cabinet, and on occasion senior Parliamentarians are appointed Privy Counsellors. As Privy Counsellors are bound by their oath to keep matters discussed at Council meetings secret, the appointment of the leaders of Opposition parties as Privy Counsellors allows the Government to share confidential information with them "on Privy Council terms". This usually only happens in special circumstances, such as in matters of national security. For example, Tony Blair met Leader of the Opposition Iain Duncan Smith and Leader of the Liberal Democrats Charles Kennedy on privy council terms to discuss the evidence for Iraq's weapons of mass destruction.

Although the Privy Council is primarily a British institution, officials from some other Commonwealth realms are also appointed to the body. By 2000, the most notable instance was New Zealand, whose Prime Minister, senior politicians, Chief Justice and Court of Appeal judges were conventionally made Privy Counsellors. However, appointments of New Zealand members have since been discontinued. The Prime Minister, the Speaker, the Governor General and the Chief Justice of New Zealand are still granted the prefix Right Honourable, but without membership in the council. Until the latter part of the 20th century, the prime ministers and chief justices of Canada and Australia were also appointed Privy Counsellors. Prime Ministers of some other Commonwealth countries which retain the Queen as their sovereign continue to be sworn as Privy Counsellors.

Privy Council oath

It was formerly regarded by the Privy Council as criminal, and possibly treasonous, to disclose the oath administered to Privy Counsellors as they take office. However, the oath was officially made public in a written parliamentary answer in 1998, as follows:

You do swear by Almighty God to be a true and faithful Servant unto the Queen's Majesty, as one of Her Majesty's Privy Council. You will not know or understand of any manner of thing to be attempted, done, or spoken against Her Majesty's Person, Honour, Crown, or Dignity Royal, but you will lett and withstand the same to the uttermost of your Power, and either cause it to be revealed to Her Majesty Herself, or to such of Her Privy Council as shall advertise Her Majesty of the same. You will, in all things to be moved, treated, and debated in Council, faithfully and truly declare your Mind and Opinion, according to your Heart and Conscience; and will keep secret all Matters committed and revealed unto you, or that shall be treated of secretly in Council. And if any of the said Treaties or Counsels shall touch any of the Counsellors, you will not reveal it unto him, but will keep the same until such time as, by the Consent of Her Majesty, or of the Council, Publication shall be made thereof. You will to your uttermost bear Faith and Allegiance unto the Queen's Majesty; and will assist and defend all Jurisdictions, Pre-eminences, and Authorities, granted to Her Majesty, and annexed to the Crown by Acts of Parliament, or otherwise, against all Foreign Princes, Persons, Prelates, States, or Potentates. And generally in all things you will do as a faithful and true Servant ought to do to Her Majesty. So help you God.

Privy Counsellors can choose to affirm their allegiance in similar terms if they prefer not to take a religious oath.

Term of office

Membership is generally for life. Formerly, the death of a monarch brought an immediate dissolution of the Council, as all Crown appointments automatically lapsed. By the 18th century, it was enacted that the Council would not be dissolved until up to six months after the demise of the Crown. By convention, however, the Sovereign would reappoint all members of the Council after its dissolution. In practice, therefore, membership continued without a break. Reappointment was made unnecessary from 1901 when the law was changed to ensure that Crown appointments were wholly unaffected by a change of monarch.

The Sovereign may however remove an individual from the Council. On 8 June 2011 Elliot Morley was expelled following his conviction on charges of false accounting in connection with an expenses scandal. Before this, the last individual to be expelled from the Council against his will was Sir Edgar Speyer, 1st Baronet, who was removed on 13 December 1921 for pro-German activities during the First World War. Individuals may choose to resign to avoid expulsion. The last individual to leave the Privy Council voluntarily was Jonathan Aitken, who left on 25 June 1997 following allegations of perjury. He was one of only three Privy Counsellors to resign in the twentieth century (the others being John Profumo, who resigned on 26 June 1963, and John Stonehouse, who resigned on 17 August 1976).

Meetings

Victoria held her first Privy Council meeting on the day of her accession in 1837.

Meetings of the Privy Council are normally held once each month wherever the Sovereign may be residing at the time. The quorum, according to the Privy Council Office, is three, though some statutes provide for other quora (for example, section 35 of Opticians Act 1989 (c. 44) provides for a lower quorum of two).

The Sovereign attends the meeting, though his or her place may be taken by two or more Counsellors of State. Under the Regency Acts 1937 to 1953, Counsellors of State may be chosen from amongst the Sovereign's spouse and the four individuals next in the line of succession who are over 21 years of age (18 for the Heir to the Throne). Normally the Sovereign remains standing at meetings of the Privy Council, so that no other members may sit down, thereby keeping meetings short. The Lord President reads out a list of Orders to be made, and the Sovereign merely says "Approved".

Only a few privy counsellors attend these regular meetings. The settled practice is that day-to-day meetings of the Council are attended by four privy counsellors, usually the Ministers responsible for the matters being approved. The Government Minister holding office as Lord President of the Council, currently the Rt Hon Nick Clegg MP (Deputy Prime Minister), usually presides. Under Britain's modern conventions of parliamentary government and constitutional monarchy, every order made in Council has been drafted by a Government Department and has already been approved by the responsible Ministers—the action taken by the Queen in Council is a mere formality required for the valid adoption of the measure.

Full meetings of the Privy Council are only held when the reigning Sovereign announces his or her own engagement (which last happened on 23 November 1839, in the reign of Queen Victoria); or when there is a Demise of the Crown, either by the death or abdication of the monarch. A full meeting of the Privy Council was also held on 6 February 1811, when George, Prince of Wales, took the oaths upon entering into the execution of the royal authority as Prince Regent, as required by Act of Parliament. The current statutes regulating the establishment of a Regency in the case of minority or incapacity of the Sovereign also require any Regents to take their oaths before the Privy Council.

In the case of a demise of the crown, the Privy Council—together with the Lords Spiritual, the Lords Temporal, the Lord Mayor of the City of London, the Aldermen of the City of London and representatives of Commonwealth nations—makes a proclamation declaring the accession of the new Sovereign and receives an oath from the new monarch relating to the security of the Church of Scotland, as required by law. It is also customary for the new Sovereign to make an allocution to the Privy Council on that occasion, and the Sovereign's speech is published in the London Gazette. That special assembly of the Privy Council and others held to proclaim the accession of the new Sovereign and to receive the required statutory oath from the monarch, is known as an Accession Council. The last such meetings were held on 6 February and 8 February 1952. As the present Queen was abroad when the last Demise of the Crown took place, the Accession Council had to meet twice, once to proclaim the Sovereign (meeting of 6 February 1952), and then again after the new Queen had returned to Britain, to receive from her the oath required by statute (meeting of 8 February 1952).

Functions

The Sovereign exercises executive authority by making Orders in Council upon the advice of the Privy Council. Orders-in-Council, which are drafted by the government rather than by the Sovereign, are secondary legislation and are used to make government regulations and to make government appointments. Furthermore, Orders-in-Council are used to grant the Royal Assent to Measures of the National Assembly for Wales, and laws passed by the legislative authorities of British Crown dependencies.

Distinct from Orders-in-Council are Orders of Council. Whilst the former are made by the Sovereign on the advice of the Privy Council, the latter are made by members of the Privy Council without the participation of the Sovereign. They are issued under the specific authority of Acts of Parliament, and are normally used to regulate public institutions.

The Sovereign, furthermore, issues Royal Charters on the advice of the Privy Council. Charters grant special status to incorporated bodies; they are used to grant "chartered" status to certain professional or educational bodies, and sometimes also city and borough status to towns. The Privy Council therefore deals with a wide variety of matters, including university statutes, graveyards, coinage, and dates of bank holidays.

The Crown-in-Council also performs certain judicial functions. Within the United Kingdom, the Crown-in-Council hears appeals from ecclesiastical courts, the Court of Admiralty of the Cinque Ports, prize courts and the Disciplinary Committee of the Royal College of Veterinary Surgeons, appeals against schemes of the Church Commissioners and appeals under certain Acts of Parliament (e.g., the House of Commons Disqualification Act 1975). The Crown-in-Council was formerly a supreme court of appeal for the entire British Empire, however a number of Commonwealth countries have now abolished such appeals. The Privy Council does continue to hear appeals from several Commonwealth countries, from British Overseas Territories, Sovereign Base Areas and crown dependencies. The aforementioned cases are theoretically decided by the monarch in Council, but are in practice heard and decided by the Judicial Committee of the Privy Council, which consists of senior judges who are Privy Counsellors. The decision of the Committee is presented in the form of "advice" to the monarch, but in practice it is always followed by the Sovereign, who formally approves the recommendation of the Judicial Committee. The Judicial Committee had direct jurisdiction in cases relating to the Scotland Act 1998, the Government of Wales Act 1998 and the Northern Ireland Act 1998, but this was transferred to the new Supreme Court of the United Kingdom in 2009.

Notable orders

The Civil Service is formally governed by Privy Council orders, as an exercise of the royal prerogative. One such order implemented the government's ban of GCHQ staff from joining a trade union. Another, the Civil Service (Amendment) Order in Council 1997, permitted the Prime Minister to grant up to three political advisers management authority over some civil servants.

In the 1960s, the Privy Council made an order to evict the 2,000 inhabitants of the 65-island Chagos Archipelago in the Indian Ocean, in preparation for the establishment of joint United States-United Kingdom military base on the largest outlying island Diego Garcia, some 60 miles (97 km) distant. In 2000 the High Court ruled the 1971 Immigration Ordinance preventing resettlement unlawful. In 2004, the Privy Council, under Jack Straw's tenure, overturned the ruling. In 2006 the High Court of Justice found the Privy Council's decision to be unlawful. Sir Sydney Kentridge, QC described the treatment of the Chagossians as "outrageous, unlawful and a breach of accepted moral standards". He said there was no known precedent "for the lawful use of prerogative powers to remove or exclude an entire population of British subjects from their homes and place of birth".

Rights and privileges of members

Although the Privy Council as a whole is "The Most Honourable", individual Privy Counsellors are entitled to the style "The Right Honourable". Peers who are also members of the Privy Council append the post-nominal letters "PC" to indicate membership as they are already entitled to the style "The Right Honourable" (in the case of barons, viscounts and earls) or other higher style (in the case of dukes and marquesses), even when they are not Privy Counsellors. For commoners, on the other hand, "The Right Honourable" is sufficient identification of status as a Privy Counsellor. The Earl of Mar and Kellie and the Earl of Scarbrough prefer not to be addressed as 'The Rt Hon' at all on the grounds that the prefix more properly belongs to Privy Counsellors. The Ministry of Justice takes a similar position.

Privy Counsellors are entitled to positions in the order of precedence in England and Wales. At the beginning of each new Parliament, and at the discretion of the Speaker, members of the House of Commons who are Privy Counsellors usually take the oath of allegiance before all other members except the Speaker and the Father of the House (the most senior member of the House). Often, whenever a Privy Counsellor rose to make a speech in the House of Commons at the same time as another member, the Speaker would first recognise the Privy Counsellor. This informal custom, however, was considered obsolete by 1998.

Furthermore, only Privy Counsellors can signify, at the monarch's command, the royal consent to the examination of a bill affecting the rights of the Crown.

Privy Counsellors are allowed to sit on the steps to the Sovereign's Throne in the House of Lords Chamber during debates. They share this privilege with hereditary Lords who were members of the House of Lords before the reform of 1999, diocesan bishops of the Church of England (who are not yet Lords Spiritual), retired bishops who formerly sat in the House of Lords, the Dean of Westminster, Peers of Ireland, the eldest child of members of the House of Lords, the Clerk of the Crown in Chancery and the Gentleman Usher of the Black Rod.

Each Privy Counsellor has the individual right of personal access to the Sovereign. Peers are considered to enjoy the same right individually; members of the House of Commons possess the right collectively. In each case, personal access may only be used to tender advice on public affairs.

Other councils

The Privy Council is one of the four principal councils of the Sovereign. The other three are the courts of law, the Commune Concilium (Common Council, or Parliament) and the Magnum Concilium (Great Council, or the assembly of all the Peers of the Realm). All are still in existence, or at least have never been formally abolished, but the Magnum Concilium has not been summoned since 1640 and was considered obsolete then.

Several other Privy Councils have advised the Sovereign. England and Scotland once had separate Privy Councils (the Privy Council of England and Privy Council of Scotland). The Acts of Union 1707, which united the two countries into the Kingdom of Great Britain, created a single body, and the Scots privy council was abolished on 1 May 1708. Ireland, on the other hand, continued to have a separate Privy Council even after the Act of Union 1800. The Privy Council of Ireland was abolished in 1922, when the southern part of Ireland separated from the United Kingdom; it was succeeded by the Privy Council of Northern Ireland, which became dormant after the suspension of the Parliament of Northern Ireland. No further appointments have been made since then, and no more than seven appointees were still living as of December 2010.

Canada has had its own Privy Council—the Queen's Privy Council for Canada—since 1867. While the Canadian Privy Council is specifically "for Canada", the Privy Council discussed above is not "for the United Kingdom"; in order to clarify the ambiguity where necessary, the latter is referred to as the Imperial Privy Council. Equivalent organs of state in other Commonwealth realms, such as Australia and New Zealand, are called Executive Councils.

See also

• List of Royal members of the Privy Council
• Historic list of Privy Counsellors
• List of current Privy Counsellors
• List of Privy Council Orders
• Committee of the Privy Council for Trade and Foreign Plantations

References

• Blackstone, W (1838). Commentaries on the Laws of England. New York: W.E. Dean.
• Brazier, R (1997). Ministers of the Crown. Oxford University Press. ISBN 0-19-825988-3.
• Cox, H (1854). The British Commonwealth, Or, A Commentary on the Institutions and Principles of British Government. London: Longman, Brown, Green, and Longmans.
• Cox, N (2002). "The Abolition or Retention of the Privy Council as the Final Court of Appeal for New Zealand: Conflict Between National Identity and Legal Pragmatism". New Zealand Universities Law Review. 20. doi:10.2139/ssrn.420373.
• Cox, N (2008). "Peerage Privileges since the House of Lords Act 1999". Selected Works of Noel Cox. Berkeley Electronic Press. Retrieved 29 August 2008.
• Dicey, A (1887). The Privy Council: the Arnold prize essay, 1860. London.{{cite book}}: CS1 maint: location missing publisher (link)
• Gay, O (2005). "The Privy Council" (PDF). House of Commons Library Standard Note. SN/PC/2708. Retrieved 13 May 2010. {{cite journal}}: Unknown parameter |coauthors= ignored (|author= suggested) (help)
• Goodnow, F (1897). Comparative Administrative Law: an Analysis of the Administrative Systems, National and Local, of the United States, England, France and Germany. New York: G.P. Putnam's Sons. ISBN 978-1-58477-622-2.
• Hayter, P (2007). Companion to the Standing Orders and guide to the Proceedings of the House of Lords (21st ed.).
• Iwi, E (1937). "A Plea for an Imperial Privy Council and Judicial Committee" (subscription required). Transactions of the Grotius Society. 23. Transactions of the Grotius Society, Vol. 23: 127–146.
• Maitland, F (1911). The constitutional history of England: a course of lectures. Cambridge.{{cite book}}: CS1 maint: location missing publisher (link)
• Warshaw, S (1996). Powersharing: White House—Cabinet relations in the modern presidency. Albany, N.Y.: State University of New York Press. ISBN 0-7914-2869-9.

External links

• Privy Council Office homepage
• Judicial Committee of the Privy Council homepage
• BBC: Do we need the Privy Council?; BBC Radio 4: What’s the point of the Privy Council?
• http://www.publications.parliament.uk/pa/ld200809/ldhansrd/text/90512-0013.htm#09051274000144. Parliamentary Debates (Hansard). House of Lords. 12 May 2009. col. 998–1013. {{cite book}}: |chapter-url= missing title (help)