The Privy Council

On 12 May 2009, five years after the BIOT Constitution Order 2004 was enacted using the royal prerogative, BBC Radio 4 took a thought-provoking look at the Privy Council: ‘What is the Point of the Privy Council?’ The broadcaster, Quentin Letts described the Royal Prerogative as “discretionary powers in hands of the crown but exercised by ministers which create laws which do not have to pass through Parliament or comply with human rights legislation.” Patrick O’Connnor QC described it as a route entirely to evade debate and scrutiny in Parliament. Jack Straw, who had signed the Orders as Foreign Secretary, was by now Lord Chancellor and Justice Secretary. He was asked how he justified the decision to deny the Chagossians the right to return to their home? “It was a difficult decision with two alternatives: whether to do it by Orders in Council or by statute….it was simpler to use Orders in Council.” Letts then asked “Do you think the Chagos islands decision should have gone at least before the Foreign Affairs Select Committee of the House of Commons?” Mr. Straw replied “In retrospect, yes. I think, with the benefit of hindsight, that what I exchanged was speed for legitimacy.”

That same day there was a debate in the House of Lords into the role of Privy Counsellors[1]. Lord McNally [currently Leader of the Liberal Democrats in the House of Lords and Minister for Justice] referred to the Radio 4 programme and the Chagos Islanders case in the following terms: “A group of citizens won their case in the courts of law yet the shadier part of our constitution provided by the Privy Council allowed that decision to be overturned.” He went on to address the Royal Prerogative: “I remember in the 1980s and 1990s Mr Tony Benn having a strong campaign to abolish the royal prerogatives. At that stage, I tended to have a powerful Pavlovian reaction that anything Mr Benn proposed must automatically be wrong, but since then I have begun to review my position. The royal prerogatives—the Privy Council powers—create a loophole in our constitution, which is a weakness in terms of parliamentary democracy. I suspect that successive Governments have clung to this apparent anachronism not from a desire to protect the monarch from radical parliamentarians, but as a way of protecting themselves from parliamentary scrutiny.”

The Lord President of the Council (Baroness Royall) replied to the debate: “The noble Lord, Lord McNally, referred to what he called the shameful case of the Chagos Islands. As he said, my right honourable friend Jack Straw stated in a programme this morning that, with hindsight, he should have engaged in parliamentary scrutiny to debate the issue of the Chagos Islanders. I am sure that that is the case, and while I understand the concerns expressed, it is right to stress that the Privy Council is not a sinister counterbalance to the elected Government, or a means of avoiding parliamentary scrutiny. Ministers are accountable to Parliament for all matters conducted through the Privy Council, and almost all important statutory Orders in Council are subject to parliamentary procedure.”

But this was not and is still not true for an Order in Council which relates to the BIOT.

She continued: “There are those who will put forward arguments that prerogative powers have no place in a modern democracy, and that is something that the Government continue to review. The Governance of Britain Green Paper[2] said: “The Government believes that in general the prerogative powers should be put onto a statutory basis and brought under stronger parliamentary scrutiny and control. The Government also intends to undertake a wider review of the remaining prerogative executive powers and will consider whether, in the longer term, all these powers should be codified or put on the statutory basis”.”

But again, the Green Paper contained no reference either to the use of the Prerogative in respect of Overseas Territories, nor of any intention to change this.

[1] House of Lords 12 May 2009 Col 999 et seq

[2] The Governance of Britain – July 2007