The Privy Council
A Correspondent has raised the question of the Privy Council, a body which to a superficial view appears to have great and uncontrolled powers. In fact, however, it is under the control of the Government and is used by them as an instrument for giving effect to government policy in matters that do not require legislation by Parliament. It has at present some 300 members made up of members of the Cabinet and former Ministers, and of what “Whitaker’s Almanack” (1948, page 256) describes as “Eminent persons.” Persons who have been made Privy Councillors remain so for life though if the Government wishes to do so it can remove them. Members of the Cabinet must be privy councillors.
Frederic Austin Ogg in his “English Government and Politics” (MacMillan. 1929. page 119) writes as follows on the membership of the Council :
“Once created a privy councillor, a man remains such for the rest of his life; so that the body always consists principally of present and past cabinet officers. Inasmuch as every prime minister selects his colleagues in the cabinet with a free hand, it is really he, of course, and not the king, who confers the dignity, although the sovereign may personally have some influence, especially in selecting the occasional persons who are appointed as a token of honour and with no intent that they shall become members of the cabinet.”
On its functions Ogg writes:
“Upon matters of moment the cabinet deliberates and frames policy. If parliamentary assent is required, it goes to Westminster for the requisite action. If, however—as is frequently the case—an order in council will suffice, it turns to the Council for the desired decree. The cabinet, group decides that the order shall be given, or that the sovereign shall be advised to act in a certain manner. But it does not, as a cabinet, give orders: that is the function of the Council (more, properly, the king-in-council), which is now—whatever may have been true in the past—essentially an executive, rather than a deliberative and advisory body.” (Pages 121-122.)
Under various Acts of Parliament power is given to ministers to issue administrative regulations carrying out the provisions of the Acts in question. The more important of these regulations are issued not by ministers directly but in the form of Orders in Council. During the war, for example, the Emergency Powers (Defence) Act, 1939, specified that Defence Regulations should be issued as Privy Council Orders and each of the Orders in Council so issued commences with a paragraph stating that “the Order was issued by His Majesty” (in fact, of course, the Cabinet) “in pursuance of the Emergency Powers Act” and “by and with the advice of his Privy Council.”
Other matters dealt with by Orders in Council are the conditions of employment of civil servants, the charters of municipal corporations and other bodies and the government of crown colonies
There are various committees of the Privy Council, notably the Judicial Committee which was created by Act of Parliament to hear appeals from Admiralty Courts and from the courts in the Dominions and Colonies. The twenty members of this Committee include present and former Lords Chancellor and the Lord President of the Council (both posts of cabinet rank) and privy councillors who hold or have held high judicial positions. The South African and Canadian governments have both now decided that they do not wish in future to send appeals to the Judicial Committee and have announced legislation to end the practice.
People who imagine that the Privy Council is an independent body able to meet and make decisions on its own responsibility not unnaturally assume that it is a powerful part of the machinery of government, but as Ogg rightly remarks it is “nowadays one of the most curious and most misunderstood parts of the constitutional system.” Although it is theoretically the King’s Council its meetings are in fact called by the Cabinet, and although it has 300 members most of them never meet. Its quorum is three members and “rarely is anyone invited to attend a Council meeting who is not an active cabinet member—at all events a minister—and in actual practice not more than four members are summoned for the purpose.” (Ogg, p.120.) Although the king usually attends meetings even that has now been made unnecessary by an Order of the Council itself that enables it to meet if necessary in the king’s absence.
In short the Privy Council is an historical relic as much under the control of those who control Parliament as the Cabinet itself.
ED. COMM