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.

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