The Privy Council: who, what, why?

With press regulation and a Royal Charter high on the political agenda, the Privy Council have been in the news almost daily over recent months. But who are the Privy Council and what are their powers?

How to spot a Privy Counsellor

Spotting a Privy Counsellor is fairly easy as members are styled as ‘Right Honourable’. If you have ever wondered why some Members of Parliament are referred to as the ‘Right Honourable’, this is why. Members of the Privy Council are collectively known as Counsellors rather than Councillors. This perhaps reflects the fact that their role is to provide advice or counsel to the monarch.

Ancient

The Privy Council predates parliament as we know it and today serves to help the Queen to exercise those prerogative powers that she retains. According to the Privy Council’s website, there are currently 619 members, although it is rare – to the point of being unheard of – that the members will meet as a full group. Usually, a group of four Privy Counsellors meet with the Queen. Meetings are very brief and all parties tend to remain standing. It is thought that this tradition developed after Queen Victoria went into mourning for her husband, Prince Albert.

The Privy Council might be called on to grant or amend a Royal Charter, such as the BBC’s Royal Charter, to approve the design of certain coins or to approve appointments to university bodies. A summary of the Orders produced at each meeting is published on the Privy Council’s website.

Lifetime membership

The longest-serving member of the Privy Council is HRH Prince Philip, the Duke of Edinburgh, who was made a member by King George VI in 1951 along with his wife, our queen, Princess Elizabeth. Although Prince Philip is still a Privy Counsellor, Her Majesty is not. Other than being excused by way of becoming monarch, being a Privy Counsellor is generally for life (although John Prescott famously resigned in July 2013 citing his objections over proposed press regulation). This means that the Privy Council contains many former politicians, including the veteran Labour parliamentarian Tony Benn, who has been a member since 1964 and commented in 2003 that he had never been to a full meeting of the body.

Judicial Functions

As well as current and former politicians, the Privy Council also includes a number of senior members of the judiciary, some of whom serve on the Judicial Committee of the Privy Council. This is the highest court of appeal for a number of current and former Commonwealth countries (such as Jamaica and Mauritius), crown dependencies like Jersey and Guernsey, overseas territories and military sovereign bases.

The Judicial Committee of the Privy Council also hears appeals from an assortment of ancient and ecclesiastical courts as well as certain bodies incorporated by Royal Charter, such as the Royal College of Veterinary Surgeons. The Judicial Committee of the Privy Council is based, along with the Supreme Court, in the former Middlesex Guildhall on Parliament Square in London.

Persuasive

Judgments of the Judicial Committee of the Privy Council have an interesting status in the law: they are not binding on the judiciary in the same way that judgments of the Supreme Court are. But as members of the Judicial Committee of the Privy Council are usually Supreme Court judges too, their judgments can be highly persuasive. This can be illustrated by the House of Lords case of Morgan Smith and subsequent Privy Council case Holley.

In R v Smith (Morgan James) in 2001, the majority of the Judicial Committee of the House of Lords (the predecessor to the Supreme Court) effectively changed the law regarding how the defence of provocation operated against a charge of murder. Many people felt that this decision had taken the law in the wrong direction, but as all law students know, only the House of Lords (today the Supreme Court) can overrule its decisions. The lower courts were stuck with Morgan Smith until parliament legislated to change the law (which it seemed unwilling to do) or the House of Lords had an opportunity to overrule itself. Nobody knew how long it would take for a sufficiently similar case to make its way to the House of Lords. It could have been decades.

However, in 2005, a similar case came before the Judicial Committee of the Privy Council. An enlarged court of nine judges heard the case of Attorney General for Jersey v Holley. They ruled, by a majority of 6 to 3 that Morgan Smith had been wrongly decided and effectively returned the law to its pre Morgan Smith position.

Strictly speaking, Morgan Smith remained good law in the UK. But in R v Mohammed [2005], the Court of Appeal chose to follow Holley. Giving judgment for the court, Lord Justice Scott Baker noted that ‘Although Holley is a decision of the Privy Council, and Morgan Smith a decision of the House of Lords, neither side has suggested that the law of England and Wales is other than as set out in… Holley.’ He later stated that ‘Indeed the law is once again as it used to be before the decision in Morgan Smith.’ This could be interpreted as the Judicial Committee of the Privy Council being used as a mechanism to ‘fix’ the law, where it would otherwise have been stuck in an undesirable dead end.

Scrutiny

The debate over a Royal Charter for the press has brought the Privy Council into the spotlight. Law students were no doubt already aware of at least some of the Privy Council’s judicial roles. But as this article has tried to show, the Privy Council still exerts everyday power in many areas in the UK and abroad.

Amy Woolfson is an Open University student. She tweets @AmyWoolfson.