The Privy Council formally advises the sovereign on the exercise of the royal prerogative. The King-in-Council issues executive instruments known as Orders in Council. The Privy Council also holds the delegated authority to issue Orders of Council, mostly used to regulate certain public institutions. It advises the sovereign on the issuing of royal charters, which are used to grant special status to incorporated bodies, and city or borough status to local authorities. Otherwise, the Privy Council's powers have now been largely replaced by its executive committee, the Cabinet of the United Kingdom.
The Privy Council of the United Kingdom, created on 1 January 1801, was preceded by the Privy Council of Scotland, the Privy Council of England, and the Privy Council of Great Britain (1708–1800). Its continued existence has been described as "more or less a constitutional and historical accident".[1] The key events in the formation of the modern Privy Council are given below:
In Anglo-Saxon England, Witenagemot was an early equivalent to the Privy Council of England. During the reigns of the Norman monarchs, the English Crown was advised by a royal court or curia regis, which consisted of magnates, ecclesiastics and high officials. The body originally concerned itself with advising the sovereign on legislation, administration and justice.[2] Later, different bodies assuming distinct functions evolved from the court. The courts of law took over the business of dispensing justice, while Parliament became the supreme legislature of the kingdom.[3] Nevertheless, the Council retained the power to hear legal disputes, either in the first instance or on appeal.[4] Furthermore, laws made by the sovereign on the advice of the Council, rather than on the advice of Parliament, were accepted as valid.[5] Powerful sovereigns often used the body to circumvent the Courts and Parliament.[5] For example, a committee of the Council—which later became the Court of the Star Chamber—was during the 15th century permitted to inflict any punishment except death, without being bound by normal court procedure.[6] During Henry VIII's reign, the sovereign, on the advice of the Council, was allowed to enact laws by mere proclamation. The legislative pre-eminence of Parliament was not restored until after Henry VIII's death.[7] The nineteen-member council by 1540 had become a new national institution, likely, the creation of Thomas Cromwell without exact definitions of its powers.[8] Though the royal Council retained legislative and judicial responsibilities, it became a primarily administrative body.[9] The Council consisted of forty members in 1553,[10] whereas Henry VII swore over a hundred servants to his council.[11] Sovereigns relied on a smaller working committee which evolved into the modern Cabinet.
By the end of the English Civil War, the monarchy, House of Lords, and Privy Council had been abolished. The remaining parliamentary chamber, the House of Commons, instituted a Council of State to execute laws and to direct administrative policy. The forty-one members of the Council were elected by the House of Commons; the body was headed by Oliver Cromwell, de facto military dictator of the nation. In 1653, however, Cromwell became Lord Protector, and the Council was reduced to between thirteen and twenty-one members, all elected by the Commons. In 1657, the Commons granted Cromwell even greater powers, some of which were reminiscent of those enjoyed by monarchs. The Council became known as the Protector's Privy Council; its members were appointed by the Lord Protector, subject to Parliament's approval.[12]
In 1659, shortly before the restoration of the monarchy, the Protector's Council was abolished.[12]Charles II restored the Royal Privy Council, but he, like previous Stuart monarchs, chose to rely on a small group of advisers.[13] The formation of the Kingdom of Great Britain in 1707 combined the Privy Councils of England and Scotland, the latter body coming to an end in 1708.
Under George I even more power transferred to a small committee of the Council, which began to meet in the absence of the sovereign, communicating its decisions to him after the fact. Thus, the Privy Council, as a whole, ceased to be a body of important confidential advisers to the Sovereign; the role passed to a committee of the Council, now known as the Cabinet.[14]
With the creation of the United Kingdom on 1 January 1801, a single Privy Council was created for Great Britain and Ireland, although the Irish Privy Council continued to exist until 1922.
Functions
The sovereign may make Orders in Council upon the advice of the Privy Council. Orders in Council, which are drafted by the government rather than by the sovereign, are forms of either primary or secondary legislation, depending on the power they are made under. Orders made under prerogative powers, such as the power to grant royal assent to legislation, are a form of primary legislation, while orders made under statutory powers are a form of secondary legislation.[15][16][17]
Orders of Council, distinct from Orders in Council, are issued by members of the Privy Council without requiring the approval of the sovereign. Like Orders in Council, they can be made under statutory powers or royal prerogative.[15] Orders of Council are most commonly used for the regulation of public institutions and regulatory bodies.[16]
The sovereign also grants royal charters on the advice of the Privy Council. Charters bestow special status to incorporated bodies; they are used to grant "chartered" status to certain professional, educational or charitable bodies, and sometimes also city and borough status to towns.[18] The Privy Council therefore deals with a wide range of matters, which also includes university and livery company statutes,[19]churchyards,[20] coinage and the dates of bank holidays.[21] The Privy Council formerly had sole power to grant academic degree-awarding powers and the title of university,[22] but following the Higher Education and Research Act 2017 these powers have been transferred to the Office for Students for educational institutions in England.[23]
Another, the Civil Service (Amendment) Order in Council 1997, permitted the Prime Minister to grant up to three political advisers management authority over some Civil Servants.[26][27]
In the 1960s, the Privy Council made an order to evict the 2,000 inhabitants of the 65-island Chagos Archipelago in the Indian Ocean, in preparation for the establishment of a joint United States–United Kingdom military base on the largest outlying island, Diego Garcia, some 60 miles (97 km) distant. In 2000, the High Court of Justice ruled that the inhabitants had a right to return to the archipelago.[citation needed]
In 2004, the Privy Council, under Jack Straw's tenure, overturned the ruling. In 2006, the High Court of Justice found the Privy Council's decision to be unlawful. Justice Kentridge stated that there was no known precedent "for the lawful use of prerogative powers to remove or exclude an entire population of British subjects from their homes and place of birth",[26][28][29] and the Court of Appeal were persuaded by this argument, but the Law Lords of the Appellate Committee of the House of Lords found the original decision to be flawed and overturned the ruling by a 3–2 decision, thereby upholding the terms of the Order in Council.[30]
The Baronetage Committee was established by a 1910 Order in Council, during Edward VII's reign, to scrutinise all succession claims (and thus reject doubtful ones) to be placed on the Roll of Baronets.[31]
The Universities Committee, which last met in 1995, considers petitions against statutes made by Oxford and Cambridge universities and their colleges.[31]
In addition to the standing committees, ad hoc committees are notionally set up to consider and report on petitions for royal charters of Incorporation and to approve changes to the bye-laws of bodies created by royal charter.[31]
Committees of privy counsellors are occasionally established to examine specific issues. Such committees are independent of the Privy Council Office and therefore do not report directly to the lord president of the council.[31] Examples of such committees include:[31]
the Butler Committee – operation of the intelligence services in the runup to military intervention in Iraq
the Chilcot Committee – for the Chilcot Inquiry on the use of intercept materials
The Sovereign, when acting on the Council's advice, is known as the King-in-Council or Queen-in-Council, depending on the sex of the reigning monarch.[37] The members of the Council are collectively known as The Lords of His Majesty's Most Honourable Privy Council[38] (sometimes The Lords and others of ...).[39] The chief officer of the body is the Lord President of the Council, who is the fourth-highest Great Officer of State,[40] a Cabinet member and normally, either the Leader of the House of Lords or of the House of Commons.[41] Another important official is the Clerk, whose signature is appended to all orders made in the Council.[42]
Both Privy Counsellor and Privy Councillor may correctly be used to refer to a member of the Council. The former, however, is preferred by the Privy Council Office,[43] emphasising English usage of the term Counsellor as "one who gives counsel", as opposed to "one who is a member of a council". A Privy Counsellor is traditionally said to be "sworn of" the Council after being received by the sovereign.[44]
The sovereign may appoint any person as a Privy Counsellor,[45] but in practice, appointments are made only on the advice of His Majesty's Government. The majority of appointees are senior politicians, including ministers of the Crown, the leader of the main opposition party, the leader of the third-largest party in the House of Commons, the heads of the devolved administrations, and senior politicians from Commonwealth countries. Besides these, the Council includes a small number of members of the Royal Family, some senior British and Commonwealth judges, some senior clergy, and a small number of senior civil servants.
There is no statutory limit to the membership of the Privy Council.[46] Members have no automatic right to attend all Privy Council meetings, and only some are summoned regularly to meetings (in practice at the Prime Minister's discretion).
The balance of Privy Counsellors is largely made up of politicians. The Prime Minister, Cabinetministers and the Leader of HM Opposition are traditionally sworn into the Privy Council upon appointment.[46] Leaders of major parties in the House of Commons, first ministers of the devolved administrations,[53] some senior ministers outside Cabinet, and on occasion other respected senior parliamentarians are appointed privy counsellors.
Although the Privy Council is primarily a British institution, officials from some other Commonwealth realms are also appointed.[46] By 2000, the most notable instance was New Zealand, whose prime minister, senior politicians, chief justice and Court of Appeal justices were traditionally appointed privy counsellors.[55] However, appointments of New Zealand members have since been discontinued. The prime minister, the speaker, the governor-general and the chief justice are still accorded the styleRight Honourable, but without membership of the Council.[56] Until the late 20th century, the prime ministers and chief justices of Canada and Australia were also appointed privy counsellors.[57][58] Canada also has its own Privy Council, the King's Privy Council for Canada (seebelow). Prime ministers of some other Commonwealth countries that retain the King as their sovereign continue to be sworn of the Council.[46]
Meetings of the Privy Council are normally held once each month wherever the Sovereign may be in residence at the time.[21] The quorum, according to the Privy Council Office, is three,[59] though some statutes provide for other quorums (for example, section 35 of the Opticians Act 1989[60] provides for a lower quorum of two).
The Sovereign attends the meeting, though their place may be taken by two or more Counsellors of State.[61][62] Under the Regency Acts 1937 to 1953 and the Counsellors of State Act 2022,[63] Counsellors of State may be chosen from among the sovereign's spouse, the four individuals next in the line of succession who are over 21 years of age (18 for the first in line), Prince Edward and Princess Anne.[62] Customarily the sovereign remains standing at meetings of the Privy Council, so that no other members may sit down,[43] thereby keeping meetings short. The Lord President reads out a list of orders to be made, and the sovereign merely says "Approved".[64]
Few Privy Counsellors are required to attend regularly. The settled practice is that day-to-day meetings of the Council are attended by four Privy Counsellors, usually the relevant minister to the matter(s) pertaining.[61] The Cabinet Minister holding the office of Lord President of the Council invariably presides.[65] Under Britain's modern conventions of parliamentary government and constitutional monarchy, every Order-in-Council is drafted by a government department and has already been approved by the minister responsible – thus actions taken by the King-in-Council are formalities required for validation of each measure.[61]
Full meetings of the Privy Council are held only when the reigning Sovereign announces their own engagement (which last happened on 23 November 1839,[66] in the reign of Queen Victoria); or when there is a Demise of the Crown, either by the death or abdication of the Monarch.[54] A full meeting of the Privy Council was also held on 6 February 1811, when the Prince of Wales was sworn in as regent by Act of Parliament.[67] The statutes regulating the establishment of a regency in the case of minority or incapacity of the sovereign also require any regents to swear their oaths before the Privy Council.[68]
In the case of a Demise of the Crown, the Privy Council – together with the Lords Spiritual, the Lords Temporal, the Lord Mayor of the City of London and Court of Aldermen of the City of London as well as representatives of Commonwealth realms – makes a proclamation declaring the accession of the new Sovereign and receives an oath from the new Monarch relating to the security of the Church of Scotland, as required by law.[69] It is also customary for the new Sovereign to make an allocution to the Privy Council on that occasion, and this Sovereign's Speech is formally published in The London Gazette. Any such Special Assembly of the Privy Council, convened to proclaim the accession of a new Sovereign and witness the Monarch's statutory oath, is known as an Accession Council. The last such meeting was held on 10 September 2022 following the death of Elizabeth II and the accession of Charles III.[70]
Term of office
Membership is conferred for life. Formerly, the death of a monarch ("demise of the Crown") brought an immediate dissolution of the council, as all Crown appointments automatically lapsed.[71] By the 18th century, it was enacted that the council would not be dissolved until up to six months after the demise of the Crown.[a] By convention, however, the sovereign would reappoint all members of the council after its dissolution.[74][75] In practice, therefore, membership continued without a break.[46] In 1901, the law was changed to ensure that Crown appointments became wholly unaffected by any succession of monarch.[76]
Individuals can choose to resign, sometimes to avoid expulsion. Three members voluntarily left the Privy Council in the 20th century: John Profumo,[81] who resigned on 26 June 1963;[82][83]John Stonehouse,[81] who resigned on 17 August 1976[82][84] and Jonathan Aitken, who resigned on 25 June 1997[85] following allegations of perjury.[81][86]
The Privy Council as a whole is termed "The Most Honourable" whilst its members individually, the Privy Counsellors, are entitled to be styled "The Right Honourable".[92] Nonetheless, some nobles automatically have higher styles: non-royal Dukes are styled "His Grace", and Marquesses as "The Most Honourable". Modern custom as recommended by Debrett's is to use the post-nominal letters "PC" in a social style of address for peers who are Privy Counsellors.[93] For commoners, "The Right Honourable" is sufficient identification of their status as a Privy Counsellor and they do not use the post-nominal letters "PC".[55][93][94] The Ministry of Justice revises the practice of this convention from time to time.[95]
Each Privy Counsellor has the right of personal access to the sovereign. Peers were considered to enjoy this right individually; members of the House of Commons possess the right collectively. In each case, personal access may only be used to tender advice on public affairs.[96]
Only Privy Counsellors can signify Royal Consent to the examination of a Bill affecting the rights of the Crown.[97]
Privy Counsellors are accorded a formal rank of precedence, if not already having a higher one.[100] At the beginning of each new Parliament, and at the discretion of the Speaker, those members of the House of Commons who are Privy Counsellors usually take the oath of allegiance before all other members except the Speaker and the Father of the House (who is the member of the House who has the longest continuous service).[101] Should a Privy Counsellor rise to speak in the House of Commons at the same time as another Honourable Member, the Speaker usually gives priority to the "Right Honourable" Member.[102] This parliamentary custom, however, was discouraged under New Labour after 1998, despite the government not being supposed to exert influence over the Speaker.[103]
The oath of the king's council (later the Privy Council) was first formulated in the early thirteenth century. This oath went through a series of revisions, but the modern form of the oath was essentially settled in 1571.[104] It was regarded by some members of the Privy Council as criminal, and possibly treasonous, to disclose the oath administered to privy counsellors as they take office.[105] However, the oath was officially made public by the Blair Government in a written parliamentary answer in 1998, as follows.[106] It had also previously been read out in full in the House of Lords during debate by Lord Rankeillour on 21 December 1932,[107] and has been openly printed in full in widely published books during the 19th and 20th centuries.[108]
You do swear by Almighty God to be a true and faithful Servant unto the King's Majesty, as one of His Majesty's Privy Council. You will not know or understand of any manner of thing to be attempted, done, or spoken against His Majesty's Person, Honour, Crown, or Dignity Royal, but you will lett and withstand the same to the uttermost of your Power, and either cause it to be revealed to His Majesty Himself, or to such of His Privy Council as shall advertise His Majesty of the same. 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 Majesty, or of the Council, Publication shall be made thereof. You will to your uttermost bear Faith and Allegiance unto the King's Majesty; and will assist and defend all Jurisdictions, Pre-eminences, and Authorities, granted to His Majesty, and annexed to the Crown by Acts of Parliament, or otherwise, against all Foreign Princes, Persons, Prelates, States, or Potentates. And generally in all things you will do as a faithful and true Servant ought to do to His Majesty. So help you God.[106]
Privy counsellors can choose to affirm their allegiance in similar terms, should they prefer not to take a religious oath.[109] At the induction ceremony, the order of precedence places Anglicans (being those of the established church) before others.[110]
The initiation ceremony for newly appointed privy counsellors is held in private, and typically requires kneeling on a stool before the Sovereign and then kissing hands.[111][112] According to The Royal Encyclopaedia: "The new Privy Counsellor or Minister will extend his or her right hand, palm upwards, and, taking the Queen's hand lightly, will kiss it with no more than a touch of the lips."[112] The ceremony has caused difficulties for Privy Counsellors who advocate republicanism; Tony Benn said in his diaries that he kissed his own thumb, rather than the Queen's hand, while Jeremy Corbyn reportedly did not kneel.[112] Not all members of the Privy Council go through the initiation ceremony; appointments are frequently made by an Order in Council, although it is "rare for a party leader to use such a course."[113]
Other councils
The Privy Council is one of the four principal councils of the sovereign. The other three are the courts of law, the Commune Concilium (Common Council, i.e. Parliament) and the Magnum Concilium (Great Council, i.e. the assembly of all the peers of the realm). All are still in existence, or at least have never been formally abolished, but the Magnum Concilium has not been summoned since 1640 and was considered defunct even then.[96][114]
Canada has had its own Privy Council—the King's Privy Council for Canada—since 1867.[119] While the Canadian Privy Council is specifically "for Canada", the Privy Council discussed above is not "for the United Kingdom"; to clarify the ambiguity where necessary, the latter was historically referred to as the Imperial Privy Council. Equivalent organs of state in other Commonwealth realms, such as Australia and New Zealand, are called Executive Councils.[120][121]
^The most recent enactment deferring dissolution was the Succession to the Crown Act 1707 (6 Ann. c. 41).[72][73] Section VIII provided, "... the Privy Council of Her Majesty, her heirs or successors for the Kingdom of Great Britain, shall not be determined or dissolved by the death or demise of Her Majesty, her heirs or successors; but such Privy Council shall continue and act as such by the space of six months next after such demise, unless sooner determined by the next successor to whom the imperial Crown of this realm is limited and appointed to go, remain, and descend; ..." Despite becoming obsolete in 1901, this section remained on the statute book until it was repealed by the Statute Law (Repeals) Act 1973 (c. 39), section 1(1) and Schedule 1 part I.
^Wilson, Derek. (1973). A Tudor tapestry : Men, women and society in Reformation England. Pittsburgh, Pa: University of Pittsburgh Press. ISBN0-8229-3242-3. p. 130 , footnote no. 12 pp. 256–257. Cf. Elton, G.R. The Tudor Revolution in Government: Administrative changes in the reign of Henry VIII. pp. 316 ff. The Internet Archive website Retrieved 13 March 2021.
^Elton, G.R. (1953). The Tudor revolution in government; administrative changes in the reign of Henry VIII. Cambridge: Cambridge University Press. p. 318. ISBN0521048923. The Internet Archive website. Retrieved 13 March 2021.
^ abPlant, D (2007). "The Council of State". British Civil Wars, Commonwealth and Protectorate, 1638–60. Archived from the original on 26 September 2008. Retrieved 11 September 2008.
^Order in CouncilArchived 19 February 2009 at the Wayback Machine dated 9 July 2008, approving The NHS Redress (Wales) Measure 2008, the first Measure to be passed by the Assembly on 6 May 2008. Office of Public Sector Information.
^"Royal Charter". Privy Council Office. Archived from the original on 5 April 2012. Retrieved 13 January 2012.
^"Legislative Competence Orders"(PDF). Constitutional Quick Guides No. 3. Welsh Assembly. 2007. Archived(PDF) from the original on 1 October 2008. Retrieved 12 September 2008.
^Rayment, Leigh (1 April 2008). "Privy Counsellors 1836–1914". Archived from the original on 26 September 2008. Retrieved 17 September 2008. Sir Edgar Speyer (struck off 13 Dec 1921)((cite web)): CS1 maint: unfit URL (link)
^ abcd"Queen Accepts Aitken's Resignation". BBC. 1997. Archived from the original on 24 November 2004. Retrieved 12 February 2008. The Queen has accepted Jonathan Aitken's resignation from the Privy Council. [...] Two former disgraced Ministers, John Profumo and John Stonehouse, have also resigned from the Council, but no one has been thrown off since 1921 when Sir Edgar Speyer was struck off for collaborating with the Germans in the First World War.
^ abRayment, Leigh (2 April 2008). "Privy Counsellors 1915–1968". Archived from the original on 26 September 2008. Retrieved 17 September 2008. John Dennis Profumo (resigned 26 Jun 1963) [...] John Thomson Stonehouse (resigned 17 Aug 1976)((cite web)): CS1 maint: unfit URL (link)
^Rayment, Leigh (10 September 2008). "Privy Counsellors 1969–present". Archived from the original on 7 June 2008. Retrieved 17 September 2008. Jonathan William Patrick Aitken (resigned 25 June 1997)((cite web)): CS1 maint: unfit URL (link)
^"Letters after the name". Debrett's. Archived from the original on 10 October 2017. Retrieved 13 September 2017. In a social style of address for a peer who is a privy counsellor it is advisable that the letters PC should follow the name. For all other members of the Privy Council the prefix 'Rt Hon' before the name is sufficient identification.
^"Peers". Forms of address. Ministry of Justice. 2008. Archived from the original on 27 August 2008. Retrieved 11 September 2008.
^Walker, A; Wood, E (14 February 2000). "The Parliamentary Oath"(PDF). Research Paper 00/17. House of Commons Library. Archived from the original(PDF) on 24 August 2000. Retrieved 8 September 2008.
^"Privy Council". BBC. 19 May 1998. Archived from the original on 6 July 2004. Retrieved 29 August 2008.
^Rayment, Leigh (27 May 2014). "Privy Counsellors—Ireland". Archived from the original on 26 September 2008. Retrieved 13 February 2015.((cite web)): CS1 maint: unfit URL (link)
^"Federal Executive Council Handbook"(PDF). Australian Government, Department of the Prime Minister and Cabinet. June 2005. Archived from the original(PDF) on 20 July 2007. Retrieved 9 September 2008.
^"Executive Council". New Zealand Government, Department of the Prime Minister and Cabinet. Archived from the original on 3 July 2008. Retrieved 9 September 2008.
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