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The British Privy Council

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Britain is one of the few countries in the world that, for various reasons, does not have a written constitution. The constitution of Britain is made up of various Acts of Parliament, precedent, tradition and a large amount of what constitutes the legal equivalent of duct tape. Thus some institutions that at first glance appear irrelevant to the functioning of Government actually hold a surprising degree of power. The Privy Council is perhaps the most important of these institutions.

A Brief History

Back in Norman times - roughly the 11th and 12th Centuries, and arguably the effective beginning of the modern English monarchy - the Privy Council was originally appointed by the Sovereign to advise him or (occasionally) her. Over the years Parliament became more powerful, and after the English Civil War of 1642 onwards, Parliament became the main power in Government. The Privy Council evolved into an advisory body composed of past and present members of the Government. Indeed, the Cabinet began as (and notionally still is) a subcommittee of the Council. In the past, the Sovereign could disregard the advice of the Council, although this may not have been wise. In the present day, disregarding the Council's 'advice' is not really an option.

Functions of the Present-day Council

The Privy Council today, together with the monarch, is the highest executive power in Britain. The day-to-day business of the Council is controlled by the government of the day, essentially the Prime Minister and the Cabinet. Councils are usually held monthly, where the Sovereign approves Orders in Council. These Orders are exercises of either statutory (that is, powers granted to the Sovereign by legislation) or prerogative powers. Those powers are still wielded by the monarch directly. For instance, the appointment of senior clergy in the Church of England is a matter for the head of the Church ie, the Sovereign. In reality, the Prime Minister recommends who should be appointed, and the monarch appoints the recommended person. Note that this is not the same as Royal Assent, which is the Royal seal of approval given to an Act of Parliament, necessary for an Act to become law.

Judicial Functions

The Privy Council also has a Judicial Committee, which was established in its modern form by the Judicial Committee Act 1833. This Committee is the final court of appeal for some Commonwealth countries, the Channel Islands, the Isle of Man and United Kingdom Overseas Territories. In the United Kingdom, the Judicial Committee handles appeals for some regulatory bodies, mainly to do with medicine, and also acts as the final court of appeal for disciplinary cases in the Church of England. A recent addition to the Committee's jurisdiction has come about due to the acts of devolution in the UK. The Committee considers the competence of the devolved governing bodies in Scotland, Wales and Northern Ireland. So, if one of these bodies acts in a way that allegedly breaks the law, the Committee has the last word on the subject.

Other Functions

The Council also plays a part in regulating the affairs of Chartered Bodies, and grants new Royal Charters to bodies that wish to be incorporated (ie, turned into a single legal entity). Chartered bodies are usually professional regulatory bodies, eminent charities and the like. In the educational sphere, the Privy Council is responsible for the use of the word 'university', and can approve an institution as competent to award degrees. The constitution and statutes of UK universities cannot be changed without approval by the Council; the exact mechanism for this varies with the university in question.

The Privy Councillor's Oath

All Privy Councillors are required to take an oath (or solemn affirmation) which, due to the mention of secrecy, tends to get some people terribly excited about what goes on behind closed doors. In fact, most of the Privy Council work is accessible to public view, and the secrecy requirement is enforced only infrequently. Among other things, it allows confidential information pertinent to national security to be shared with the leaders of opposition1 parties, if required.

The current form of the Oath dates back to about 1250, and reads:

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 His (Her) Majesty, or the Council, Publication shall be made thereof.

Membership of the Council

Members of the Privy Council are appointed for life, and are only removed in rare circumstances (such as when convicted of a serious crime, such as in the case of Jonathan Aitken). There are currently around 400 members of the Council, although the actual active membership is much smaller, and consists mainly of the Government of the day, as well as the First Ministers and Deputy First Ministers of the Scottish Parliament, Welsh Assembly and Northern Ireland Assembly. The full council only meets during the succession of a new Sovereign, or if the Sovereign intends to get married.

In the House of Commons, MPs (Members of Parliament) who are also members of the Council are referred to as 'The Right Honourable Member for...', and take precedence over ordinary MPs (who are just known as 'The Honourable Member for...') during debates.

Members of the Council include:

  • All members of the Cabinet, from the Prime Minister downwards.
  • Some junior (non-Cabinet) Ministers, generally at the discretion of the Prime Minister.
  • The leaders of the main Opposition parties in both houses of Parliament.
  • The Lord Chancellor, who is head of the Judiciary, a member of the Cabinet and Speaker for the House of Lords.
  • The Speaker of the House of Commons.
  • The Lords Justices of Appeal (senior judges who sit in the House of Lords, also known as the law lords).
  • Some senior Commonwealth judges.
  • The Archbishops and senior Bishops of the Church of England (The 'Lords Spiritual').
1Not all opposition leaders, however. Generally, only leaders of reasonably sizeable opposition parties will be invited to become a Privy Counsellors. The definition of 'reasonably sizable' is somewhat vague, but at the time of writing only the Labour, Conservative and Liberal Democratic parties could be said to qualify (minus the party in power, of course).

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