What’s it for?

Martin Loughlin

  • By Royal Appointment: Tales from the Privy Council – the Unknown Arm of Government by David Rogers
    Biteback, 344 pp, £25.00, July 2015, ISBN 978 1 84954 856 4

Is there anyone nowadays who boasts a sure understanding of the laws and practices of the British constitution? Who today extols the ‘matchless constitution’? It was commonly accepted not so long ago – and not only by the British – that while Western civilisation had drawn its religious beliefs from the Middle East, its mathematical knowledge from the Arabs, its artistic sensibility from the Greeks and its laws from the Romans, it was from the British that it had derived the arts of political organisation. Yet it’s impossible to survey contemporary British governmental institutions without a sense that something, somewhere, has gone very wrong. There are many reasons we’ve lost our way, but one is the loss of a sense of history.

The British no longer grasp the nature and functions of their inherited political institutions. Weighed down by traditions they don’t understand, they’ve attempted to modernise using replicas made with imported moulds. Think of Tony Blair abolishing the office of Lord Chancellor by press release in 2003. The Lord Chancellor’s department was immediately reformed and replaced by a Department for Constitutional Affairs, which lasted only until 2007, when it morphed into a Continental-style Ministry of Justice. It was the threat of such reforms that in 1928 led the Lord Chief Justice to complain of the ‘new despotism’ caused by the growth of executive discretionary powers. Since 2012 the ministry has been headed by Conservative apparatchiks whose previous experience has not been in law but in broadcasting.

One of the more arcane inherited institutions is the Privy Council. Apparently the oldest surviving governmental institution in the world, its purpose today is shrouded in mystery. ‘I want to know what privy councillors are for,’ Lord Rodgers of Quarry Bank asked in a Lords debate in 2009. Is membership merely an honour or does the Privy Council have ‘a significant function within the processes of government’? If Bill Rodgers, a privy councillor for thirty years, didn’t have the answers, what hope is there for the rest of us? What is this council, who are its members and what on earth does it do?

The members include all present and past members of the cabinet, most living speakers and chief whips of parliament, a few members of the royal family, some archbishops, a considerable number of senior British and Commonwealth judges, a smattering of leading politicians and judges from across the Commonwealth and a few assorted persons appointed for specific reasons (Peter Riddell, for example, a former Times journalist who acquired membership in 2010 when appointed to the committee examining whether British intelligence services were complicit in the torture of Guantánamo detainees). If we want an official list of the British and Commonwealth representatives of the political establishment, we need look no further. The six hundred or so members of the Privy Council are appointed for life. They span the party political spectrum, many are peers, and they form a disparate group. The last full meeting of the Privy Council was held in 1839, which suggests a purely ceremonial function. But isn’t the House of Lords enough of a theatrical show? What special purpose does the council serve?

David Rogers’s book, only the second published on the subject in the last hundred years (the first was Sir Almeric FitzRoy’s The History of the Privy Council), seeks to understand the institution by looking at its history. Ancient though they are, the council’s origins are not difficult to locate. By the end of the 13th century, the king’s council had become distinct from the court and the grand council of parliament. The council, comprised of the great officers of state, sat in permanent session and was charged with advising the king on all aspects of his prerogative powers. These included making laws, governing the kingdom, raising taxes and exercising judgment. Some responsibilities, such as making statutes, lay with parliament, but this was a parliament in which council members played leading roles. The king in council may not have been able to enact legislation but he could certainly make ordinances in areas of government such as foreign relations and control of the military, trade, printing, coinage and aliens.

Over the following centuries, the council became a central part of the permanent machinery of the king’s government. All government business was brought before it. Its members were appointed by the king and were salaried. They had to take an oath to give faithful advice and maintain the secrecy of their deliberations. They often met in the monarch’s absence and would keep a written record of their proceedings. The existence of the council ensured formality in the conduct of government via the doctrine of the king’s seals. The king’s will was officially recognised by writs, charters and letters patent that had been attested by royal seal. But since the great seal was kept by the Lord Chancellor, the privy seal by the Lord Privy Seal and the king’s signet by two secretaries of state, governing had to be done through these intermediaries. The council was institutionalised further by the appointment, in the Tudor period, of a Lord President of the Council.

The council’s authority shouldn’t be exaggerated. The Privy Council exercised real power, but the power depended on royal prerogative. The king appointed and dismissed these officers at will, was under no legal obligation to seek the council’s advice or to follow it, and the council itself had no powers – those it exercised were the king’s. Throughout the early modern period, the council was an instrument of monarchical rule. It became a powerful tool of government under the Tudors, but only because the king’s power grew. Under Henry VIII, the nobility began to lose control. For the first time commoners formed a majority on the council and brought legal and diplomatic experience with them. This increased the council’s competence, but also reinforced the dependence of the councillors on the king’s good favour.

By the 17th century, the council played a central role in discharging the king’s powers. It held penal jurisdiction in the notorious Star Chamber, a prerogative court that used inquisitorial methods (including torture) and operated without juries. Charles I exploited these powers during his 11 years of rule without parliament (the era of ‘the old despotism’), and in 1641 parliament responded by legislating for the Star Chamber’s abolition. This removed most but not all of the council’s judicial powers. It was no longer necessary to have regular meetings and increasingly the Stuart monarchs trusted only a few confidants. During Charles II’s reign, an inner group – the Cabal – emerged and became known as the Cabinet Council: the council held in the king’s own cabinet.

By the end of the 17th century, then, the Privy Council didn’t have its own legal powers, but the high officers of state within it did. The Lord Chancellor, for example, had extensive legal powers and the doctrine of the seals required the king to appoint officers who might be called to account for their use. The seals of office are not merely ceremonial; they are effective instruments of government. ‘Without a great seal,’ the Victorian legal historian F.W. Maitland explained, ‘England could not be governed.’

This period marks the council’s apotheosis. Until this point, no distinction had been made between the constitution and the law. The English constitution contained three key elements: the prerogatives of the Crown, the privileges of parliament and the liberties of the subject. Lawyers’ claims about the relative importance of these elements remained contentious: indeed, this is what the conflicts of the 17th century were all about. But there was no doubting this was a law-based constitution. Law was the place where, as Maitland put it, ‘life and logic met.’ This was about to change.

The distinguishing feature of the modern (or post-1700) British constitution is that a fundamental distinction is made between the constitution and the law: it is an elementary precept that official action may be lawful but nonetheless unconstitutional. This innovation had serious implications for the role of the Privy Council.

By 1700, the king was obliged by law to have a Privy Council, though to preserve prerogative niceties, legislation addressed the point obliquely. The 1707 Act of Union provides that ‘there shall be but one Privy Council in or for the Kingdom of Great Britain’ and it will have the same powers the English council had at the time of the union. Council membership, however, is not fixed by law and no quorum is specified. The summoning of a parliament has to be effected by an order in council, but the order can be made by the monarch meeting with just a few select members.

The pivotal change in the role of the Privy Council came during debates over the Act of Settlement of 1701. The act’s main purpose was to settle the succession on the Protestant heirs of the House of Hanover. Fearing that a German king might be unduly influenced by foreign advisers, parliament inserted a revolutionary provision into it. Section 4 stated: ‘All matters and things relating to the well-governing of this kingdom which are properly cognisable in the Privy Council by the laws and customs of this realm shall be transacted there, and all resolutions taken thereupon shall be signed by such of the Privy Council as shall advise and consent to the same.’ The provision formalised the council’s status, but its main aim was to remove the cloak of secrecy by establishing a way for parliament to discover who was advising the king, making it easier to hold them to account. Parliament sought to resolve an ambiguity in the role of the council: was it an aid to, or check on, the king?

But the provision never came into force and was repealed in 1705. The parliamentary authorities had come to recognise the usefulness of the emerging arrangement of cabinet government: advice was received in secret from officers who could command the confidence of parliament. The legal principle that the king could do no wrong was converted into the principle that the king could do nothing on his own. William and Anne regularly attended meetings of the Cabinet Council, which legally speaking were meetings of the Privy Council. But George, who didn’t speak English, and concerned himself little with domestic matters, ceased to attend and the Cabinet Council gradually acquired a separate authority.

It was soon accepted that the Cabinet Council would consist of officers from a single political party, that it had full authority to deal with all government business, and that a leading figure among its membership would enjoy privileged access to offer counsel to the king. The now familiar practice of cabinet government presided over by the prime minister was formed. But neither the cabinet as a corporate entity nor the office of the prime minister is defined in law. They have grown up through practice and exercise enormous power by virtue of ‘constitutional understandings’.

The high offices of state that remained hereditary, such as the office of Earl Marshal vested in the Duke of Norfolk, lost all political significance. But the Lord Chancellor, the Lord Privy Seal and the Lord President of the Council remain cabinet positions, alongside HM’s principal secretaries of state. As does the office of Lord High Treasurer, which at the beginning of the Hanoverian era was split into two positions: the First Lord of the Treasury (today the prime minister) and the Second Lord (now chancellor of the exchequer). The modern roles are concealed behind ancient offices, ‘like an old man who still wears … clothes in the fashion of his youth: what you see of him is the same; what you do not see is wholly altered.’ Or so Bagehot thought.

The gulf between ancient form and modern practice explains the peculiarity of the modern Privy Council. All cabinet members become privy councillors and their oath of secrecy underpins collective cabinet responsibility. Leaders of the opposition and first ministers of devolved legislatures, or of Commonwealth countries, are made members to facilitate the conveyance of sensitive matters of state. And the council retains an important judicial function, as the court of last resort in all civil and criminal matters arising in ‘the king’s lands beyond the seas’. In 1833, the judicial committee of the Privy Council was put on a statutory footing, by which time it had become the final tribunal for a vast empire. In keeping with the ancient customs, the court’s opinion takes the form of advice to the queen, and an order in council gives effect to its ruling. It continues to be the court of final appeal for those Commonwealth states that choose to keep it, which is the reason senior judges – including one regular LRB contributor – are appointed to it.

Its history suggests that the Privy Council is retained only as part of the dignified version of the constitution. Perhaps, but not entirely. In certain circumstances, resort to the council is the legally necessary method for exercising the crown’s powers, and various standing committees (such as the Universities Committee) exist for this purpose. Government today is carried on mainly through the exercise of statutory powers, which are commonly given to one of HM’s principal secretaries of state. But some powers are specifically given to the queen in council, and there are still prerogative powers that can be exercised through the council. When, for example, the Thatcher government resolved in 1984 to make trade union membership incompatible with employment at GCHQ, this was effected by an order in council. So was the action in 1971 to remove the Chagos Islanders to Mauritius so that Diego Garcia could be leased to the US as a military base. And then, in 2013, in the aftermath of the hacking scandal and the failures of press self-regulation, the queen in council imposed a royal charter on self-regulation of the press.

The Privy Council remains an important instrument of governmental business, though it is now essentially a mechanism by which executive decisions made elsewhere are legitimated. Meetings of the council are purely formal, in that summonses are sent out by the Lord President to a handful of privy councillors who meet and approve orders that have been prepared by the relevant government department. Since the meeting is required simply to authorise a predetermined decision, there is no debate and no vote.

This leads to administrative absurdities of the kind revealed in Richard Crossman’s diary entry for 20 September 1966, when he was Lord President: ‘The Privy Council is the best example of pure mumbo-jumbo you can find. It is interesting to reflect that four ministers, busy men, all had to take a night and a day off to go up there [to Balmoral] with Godfrey Agnew [the clerk of the council] to stand for two and a half min-utes while the list of titles was read out. It would have been far simpler for the queen to come down to Buckingham Palace but it’s lèse-majesté to suggest it.’ Crossman’s jaundiced view was probably exacerbated by the fact that, being obliged to wear a corset for medical reasons, he experienced considerable difficulty in walking backwards in the queen’s presence at these meetings.

In his 1928 book, Sir Almeric FitzRoy (not, so far as I know, a pseudonym taken from a P.G. Wodehouse novel) felt that the attempt to justify the council’s existence was bound to end in tears. FitzRoy persisted, he tells us, in the hope of encouraging ‘a class of readers who are not, as a rule, attracted by what are commonly regarded as serious books’. Rogers, it appears, has a similar objective: he helps us understand what the Privy Council does and how and why it does it. But the book stresses continuity rather than change in the transition from ancient law to modern practice. It provides a thoroughly orthodox endorsement – starting from scratch we would not create it, but it works well and fulfils an important role – in place of any critical assessment.

Rogers implicitly endorses FitzRoy’s claim that the Privy Council triumphantly vindicates Tocqueville’s observation that ‘forms are the fortresses of liberty.’ This kind of Whiggism overlooks the radical change in the Privy Council’s function from instrument of monarchical government in a law-framed constitution to instrument of parliamentary government operating through conventional understandings. Tacitus is closer to the mark. The secret of establishing a new state, he says, is to maintain the forms of the old.

This adage has served the modern British state well enough, but only when their conditions and limits are understood, and tacitly observed. Jeremy Corbyn’s avoidance of his investiture into the Privy Council suggests he’s not prepared to do tacit observance. But he has become trapped in a politics of ritual that his opponents are determined to exploit ruthlessly. Alan Duncan has accused Corbyn of putting his politics ahead of his queen, and questioned whether he wants to be accepted as a ‘serious political figure’. Duncan is the Tory MP who caused consternation by turning up at Mrs Thatcher’s funeral in 2013 dressed in the formal Privy Council uniform of gold braid and bicorn hat with ostrich feathers. At least he had the good grace to leave his sword at home.