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Beware the threat of rule by Privy Council

The agreement of the three main parties to use the Privy Council to create a Royal Charter to impose controls over newspapers shows their utter contempt for the democratic process.

Fearful of the right-wing media they want to corral, and desperate to avoid an open debate in Parliament, they have instead turned to a secret body that meets at Buckingham Palace to do their bidding.

The Privy Council, which has its origins in the 13th century as secret advisors to the monarch, hasn’t actually met in full for 25 years. This agency of feudalism instead has a “quorum” of three or four. No one actually knows, because there are no written rules.

All members of the cabinet, past and present, are members of the Privy Council. So are senior judges, archbishops and members of the royal family. Although there are over 600 members, only senior ministers ever get invited to meet the queen, who then signs Orders in Council (OIC).

Prerogative orders have the same force as legislation – but need not go before parliament for approval. So the Royal Charter on the press will come into force simply when the queen signs it. No wonder Index on Censorship and others have condemned the moves as a blow to democracy.

The Privy Council may seem quaint and a relic but has a sinister side to it. It is a vehicle for executive decisions by the government, formally issued under the name of the monarch.

The dissolution and summoning of Parliament are effected by royal proclamation; so are the declaration and termination of a state of war, and the declaration of a state of emergency.

A key role in the development the British empire was played by the Privy Council, which
developed into an instrument for colonial administration. Councils of Trade and of the Plantations were established in the late 17th century. The Honourable East India Company was granted its Royal Charter by Elizabeth I, and many followed, including the Hudson's Bay Company Canada and the Royal African Company.  “They normally exploited trade and slaving monopolies and privileges,” says  Patrick O’Connor QC, author of a study of the Privy Council for the campaign group Justice.

Prerogative Orders in Council are not laid before parliament at any time. There is no need, for example, to explain their compatibility with the European Convention on Human Rights. When trade union rights were abolished at the government communications centre GCHQ, this was achieved through an OIC. Chagos Islanders were removed from their location by an OIC. O’Connor warns:

The PC [Privy Council]  is a body imbued with undemocratic values and practices, under the illusion that it is above democracy on a higher plane. It is both institutionally as a whole, and severally by its individual membership, inherently remote from any democratic instinct.

The lack of accessibility and transparency of the PC means that almost no one understands its processes. In a serious emergency, the British people would simply be presented with its products: proclamations and OICs having various formal legal effects upon the rights and duties of us all.

A QC chooses his words carefully so when O’Connor warns that “in a real constitutional crisis, this country would be ruled by OICs”, we should take him seriously.

Parliament once resisted the Privy Council. As far back as 1353, there was a protest against “legislation by ordinance”, which claimed the Commons was being by-passed by the Privy Council for law-making purposes. In the reign of Charles I, the Petition of Right 1627 listed various abuses by the Privy Council.

Although Charles agreed to sign the petition, in practice he ignored parliament’s wishes. Civil war between crown and parliament was the result. The Privy Council found its feet again with the restoration of monarchy in 1660.

In 2013, parliament is a poodle of the executive, which in turn relies on the Privy Council for its dirty work. If there was ever a case for a sweeping, new democratic constitution embodied in an Agreement of the People, the unholy ConDemLab coalition deal on the press is it!

Paul Feldman
Communications editor
19 March 2013

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