The Privy Council (PC) is one of those ancient bodies lost in a fog of age and mystery. Even the law fails to provide any firm statutory definition: according to the Interpretation Act 1978, “‘The Privy Council’ means the Lords and others of Her Majesty’s Most Honourable Privy Council”1. Dating back to approximately the 11/12th Century, the PC formed whilst the sovereign governed by divine right. Since then, functions such as Parliament and the courts of law have evolved. Some of these institutions were founded independently of the PC, but others stemmed from the PC into a distinct body. Over the years, it seems that most of the useful and articulate substance of the Council has been extracted, and left it with a miscellaneous mush of duties.
Over 540 counsellors make up the PC, including senior politicians, cabinet ministers, judiciary, church figures and previous MPs (and currently Prince Phillip). Once the oath of allegiance that dates back to 12502 has been sworn, appointment is for life. In theory, the Queen can appoint anyone, but in practise, it is usually on the recommendation of the government. Until recently, members of the PC would take precedence over other MPs when speaking in the House of Commons chamber, and could speak for longer. The Lord President of the PC is always a cabinet minister, and usually leader of one of the Parliamentary Houses. Since May 2010 up to the present day, the Lord President of the PC is the Rt Hon Nick Clegg3.
Discarding the circular definition given by the Interpretation Act, essentially, the PC is a group of advisors to the sovereign. It’s vaguely split into two parts; the Council and the Judicial Committee. The Council are to officially advise on both “the exercise of prerogative powers”4 and the Queen’s personal powers, before performing them on her behalf. Counsellors may make orders that bypass Parliament and therefore avoid any compulsory compliance with the Human Rights Act 1998. Once passed, these orders have the same strength as Parliament-enacted laws. The discussions within the PC meetings range from the Royal Wedding5 to the UN restrictive measures on Libya6. Patrick O’Connor Q.C., who wrote a paper on the role of the PC, claimed “There can be no consistent rationale for these diverse functions. They are little more than a rag bag of historical accidents”7.
Roger Smith, JUSTICE Director, acknowledges that “many people may have heard of [the Privy Council’s] Judicial Committee” which has a much more defined role than that of the Council. The Judicial Committee of the Privy Council (JCPC) operates differently to normal courts to “humbly advise Her Majesty” whilst holding the power to save people from death. Usually it comprises of 12 law lords from the highest court (Appellate Court) but occasionally employs prominent foreign judges. It acts as the final court of appeal to many former colonies, Commonwealth countries and overseas territories e.g. the Isle of Man. However, since 19318, many have cut their ties with the JCPC including Canada, Australia, India and New Zealand9. In October 2009 the court moved from the Council Chamber in Downing Street to the Supreme Court10, and now deals with approximately 55-65 Commonwealth and devolution appeals each year11.
Of course, as with any institution, there is a deep history, but this provides an outline to one of the most opaque bodies in this age of the transparent government.