What is the privy council?
The privy council is formally a body of advisers to the King. It is an important link between the executive powers of ministers and the constitutional authority of the sovereign, largely comprising senior current and former ministers and members of the judiciary. It advises the King on the use of prerogative and statutory powers. 10 The Privy Council Office, ‘Privy Council’, (no date) retrieved 3 February 2022, privycouncil.independent.gov.uk/privy-council
The privy council has existed in some form since the 13th century as the group of counsellors advising the monarch. The modern cabinet evolved from this group and is technically a committee of the privy council.
Who is appointed to the privy council?
All members of the cabinet are sworn into the privy council. Some junior ministers, the leader of the official opposition and a few other senior politicians from opposition parties and the devolved administrations are also appointed. Senior members of the clergy, justices of the Court of Appeal and Supreme Court, and some politicians from the Commonwealth are also members. Appointments are made by the King on the advice of the prime minister.
Members of the privy council are known as privy counsellors and are addressed as ‘The Right Honourable’. Membership lasts for life, although there have been cases where a privy counsellor has been – or requested to be – removed, either due to criminal convictions or in protest. For example, Labour MP Elliot Morley’s membership was revoked in 2011 after he was convicted for fraud for his parliamentary expenses, and in 2013, Lord Prescott asked to be removed in protest at changes to press regulations made in the wake of the phone-hacking scandal.
There is no limit to the size of the privy council, which currently sits at 733 members, up from 320 in 1952. Most members are inactive and only current ministers are regularly involved in privy council affairs or required to attend in-person meetings.
What are its powers?
The privy council is the basis for some powers of ministers and is thus a constitutional mechanism through which ministers can give advice to the King on certain matters.
The privy council exercises its executive powers through issuing formal documents called orders, which have the force of law. ‘Orders in council’ are personally approved by the King during meetings (albeit after ministers have reached an agreement to recommend approval beforehand). ‘Orders of council’ do not require the approval of the King – only by ministers in their role as privy counsellors. 11 Everett M., ‘The Privy Council’ (2016), House of Commons briefing paper There are more than 400 acts of parliament giving the privy council powers to make orders.
The King approves legislation by saying “approved” to each order read out by the lord president of the council during meetings. In addition, he summons – or prorogues – parliament on advice from the privy council.
Orders are either statutory or issued under royal prerogative. Statutory orders are issued when an act of parliament delegates power to the privy council. Prerogative orders are used on matters for which it is not appropriate for parliament to concern itself or when legislation does not specifically allocate responsibility to a particular minister.
For example, it is through the privy council that – on the advice of her ministers – the King grants royal charters, issues proclamations (for instance on bank holidays), deals with matters related to certain professional bodies and universities and ratifies legislation from or extends it to overseas territories and crown dependencies.
In addition, the privy council has some judicial functions, which are dealt with by judges – rather than ministers – through the council’s judicial committee.
How does the privy council work?
Most of the privy council’s business is conducted by ministers through committees, most of which usually do not meet in person but reach decisions through interdepartmental correspondence. The privy council office co-ordinates the affairs of the council, 12 The Privy Council Office, ‘Privy Council Office’, (no date) retrieved 3 February 2022, privycouncil.independent.gov.uk/privy-council-office and is headed by the lord president of the council, who must be a cabinet member and is usually the leader of the House of Commons (as the current post holder, Penny Mordaunt, is). However, not all committees of privy counsellors are run from the privy council office and are sometimes established on an ad-hoc basis to look at a particular issue, such as the Chilcot committee that conducted the inquiry into the UK’s 2003 invasion of Iraq.
A few privy counsellors will usually meet in person once a month. Meetings are attended by four or five members of the current government and are presided over by the King. The lord president reads out the orders of the day, which are approved by the King. Although he can in principle refuse, approval is now merely regarded as a formality – much in the same way that royal assent is granted to acts of parliament.
The whole privy council is only convened when an unmarried monarch becomes engaged or a new sovereign ascends to the throne. This last happened in 1839 and September 2022, following the death of Queen Elizabeth II and the accession of Charles III, respectively. Even then, in practice, not all members of the council will attend.
How are members admitted to the privy council?
Privy counsellors have to take an oath – or make an affirmation – when being admitted to the privy council. A section of the oath requires the taker to keep “secret matters committed” to them. This has led to a convention developing where privy counsellors receive confidential briefings on “privy council terms”, usually on matters of national security.
Why are leaders of the opposition privy counsellors?
It is a convention that the leader of the opposition is appointed in recognition of his or her seniority. It has also been used as a mechanism by which a confidential briefing can occasionally be given to the leader of the official opposition or other senior politicians who are not in government.
In 2003, then prime minister Tony Blair met leader of the opposition, Iain Duncan Smith, to discuss evidence on the presence of weapons of mass destruction in Iraq. More recently, following the February 2021 Russian invasion of Ukraine, the government has briefed politicians from across the Commons on ‘privy council terms’, allowing them to access confidential information.
What judicial functions does the privy council have?
The judicial committee of the privy council is the final court of appeal for the UK’s overseas territories, crown dependencies (Jersey, Guernsey, Isle of Man) and some Commonwealth countries. This sits in the Supreme Court building.