Report on the legal and constitutional powers of the Privy Council

Justice, a UK human rights NGO, has published a report on the legal and constitutional powers of the UK’s Privy Council.

The Constitutional Role of the Privy Council and the Prerogative

Patrick O’Connor QC, Doughty Street Chambers

http://www.justice.org.uk/inthenews/index.html

Excerpts from the Report and Summary Conclusions

Tracing its origin back to the twelfth or thirteen century, its continued existence, if considered at

all, is regarded as vaguely charming and largely formal. But, as the vehicle that dispossessed

those living on or near Diego Garcia, the Privy Council can still display the power that once it

had more widely as an instrument of feudal rule.

 

This paper examines the history, development and current role of the Privy Council. It will try to

throw light upon its procedures and practices and ask what role can be played in a modern

21st century constitution by such a body. Constitutional reform is in the air. Can a new spirit of

transparency and democratic accountability penetrate even as far as the Privy Council? Is the

Privy Council robust enough to safeguard the real public interest in a national emergency? On

the other hand, is it a weak point, a tempting resource for evading democracy in a crisis? Is such

a body necessary at all? What role should the ‘prerogative powers’ play? Are they controlled, or

even controllable?

The Privy Council matters. It provides an avenue by which the executive can evade the scrutiny of

Parliament and create immediately effective laws. It perpetuates fictions which conceal the reality of the

exercises of power. It is at the heart of our outdated culture of deference.

 

The Privy Council is a dysfunctional body. There is no rationale which can justify the eclectic range of

its work. It currently ranges from being in part ‘synonymous with government’, to an independent court: from

a forum for the monarch’s real remaining personal prerogative powers, to a theatre for benign historic

ceremonial. This has all arisen by historical accident, and has never been analysed rationally. The repeated

reference to an ‘advisory’ role, and the absence of any acknowledgement that the PC is a vehicle for the

direct exercise of constitutional powers is less than transparent. This is the most important of the many

fictions surrounding the PC, cloaked in a fog of outdated language

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