THE PRIVY COUNCIL

THE PRIVY COUNCIL

Since 1066, the Monarch has appointed a Chancellor, who was head of the King’s administration, the supreme legislative, executive, judicial body and had custody of the Great Seal. The Council is traceable to the thirteenth century. It was through the Privy Council that monarchs would rule without recourse to parliament. Throughout the fourteenth century, however, there were serious conflicts between the Council and parliament and, in the reigns of Henry IV (1399-1413) and Henry V (1413­22), there is evidence of the Commons petitioning the King against the jurisdiction seized by the Council. The Council by this time was exercising judicial powers in relation to both criminal and civil litigation.

we may say, the golden age of the Council: the Council exercises enormous powers of the most various kinds; but it is not an independent body – as against the King it has little power or none at all. [2908, p 256]

By the reign of Henry VIII (1509–47), the Council comprised Privy Councilors – the King’s elite advisers – and ordinary Councilors – lawyers and administrators. Following the restoration of the monarchy, it became the body on which the King relied for advice.

With the Glorious Revolution of 1688 and the rise of parliamentary sovereignty, the role of the Council changed. Under William, the inner circle of the Council became known as the Cabinet Council. Through this Cabinet, the King could exercise all his powers. The early origins of Cabinet government can be seen here. As FW Maitland observed:

We now see how it is legally possible for the work of government to fall into the hands of a small number of the Council – those Members who hold the high offices of state and who have control over the seals of office. If the King has with him the Chancellor, the Treasurer or First Lord of the Treasury; the Lord Privy Seal, and the Secretaries of State, he can get his work done without consulting the mass of Privy Councillors. If, for any purpose, an Order in Council is required, a meeting of the King with just these few intimate advisers will be a good enough meeting of the Privy Council at which Orders in Council can be made. So much is the legal possibility of Cabinet government. [1908, p 394)

While King William and Queen Anne attended Council meetings regularly, a change of practice occurred with the reign of George I (1714-27) and George II (1727-60). Neither could speak English, and nor were they particularly concerned with English matters. Accordingly, the Cabinet began to meet without the King. Under George III (1760-1820), the same situation prevailed, the Cabinet meeting without the King and communicating its decision to the King. Again, we find the origins of today’s Cabinet. With the rise of the Cabinet system of government in the eighteenth century, the Privy Council gradually lost much of its power.

Composition of the Privy Council:

The Privy Council has over-400 members, half of whom are peers, half commoners. There is no fixed number of members. The Crown, with the advice of the Prime Minister, makes appointments. By convention, all present and past Cabinet members, members of the Royal Family, senior judges, two Archbishops, British Ambassadors, the Speaker of the House of Commons, present and former leaders of the Opposition, and leading Commonwealth spokesmen and judges are appointed to the Privy Council. The Privy Council oath binds the member to secrecy in relation to any, matters discussed in the Council.

Meetings of the Privy Council:

The Privy Council may meet wherever the Queen so decides although, normally, the Council will meet at Buckingham Palace. The quorum is three.

FUNCTIONS OF THE PRIVY COUNCIL

It was the Privy Council, which determined the summoning and dissolution of parliament and declarations of war and peace, state recognition and legal personality by granting charters to bodies, although it seems clear that the King would act through Orders in Council published after consultation with an inner circle of the Privy Council. Orders in Council give effect to decisions reached under the royal prerogative and under statute. Orders in Council may be legislative, executive or judicial. The role of the Privy Council is largely formal. Its approval is needed for certain important exercises of the royal prerogative, known as prerogative orders in council. Approval is usually given by a small deputation of Councillors attending the Queen.

Committees of the Privy Council:

The majority of Privy Council functions are undertaken in committees. Miscellaneous committees have been established. These include committees dealing with scientific research, universities, professional, scientific and cultural organisations and the granting of charters. It can exercise some degree of supervision over such bodies.

The most important committee is the judicial Committee. The Judicial Committee was established under statute by the judicial Committee Act 1833. The judicial Committee is composed of the Lord Chancellor, Lord President and former Lord Presidents of the Council, Lords of Appeal in Ordinary and the Lord Justices of Appeal, former Lord Chancellors and retired Lords of Appeal; senior judges or former judges of those Commonwealth countries from which a right of appeal still lies.

The judicial Committee will on occasion examine and report on matters of constitutional importance. It has, for example, examined the legality of telephone tapping, issues of state security, and British policy in relation to the Falkland Islands

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