Tuesday, 12 March 2013
Behind the closed doors...
THE PRIVY COUNCIL – As described by William Hague and Tony Benn before the Public Administration Committee in April 2003
CHAIRMAN - I apologise for quoting on this occasion that well-known Labour backbencher Mr Robin Cook. He said this, of course, when he was a Cabinet Minister. He described the Privy Council as having "a unique place in history, providing a service to the Executive and to the Monarchy." You are both privy councillors. What are the functions of the Privy Council and how do you see the important role, if it is an important role, that they play.
MR BENN - I have been a member since 1964 and it has never met. The only time the Privy Council ever meets as a whole is on the demise of the Crown. It is a very interesting occasion, if I may indicate my feelings about it. If I outlive the Queen or she retires, I will attend a Privy Council meeting. The Privy Council then declares the succession in a very interesting form of words. They declare that "with one heart, mind and voice" the heir is the successor. I wonder, if I put "object"—it is the unanimity rule: one heart, mind and voice—if my heart, mind and voice does not agree, will it invalidate the succession? I have a feeling there will be an accident to my taxi on the way to that meeting if I was thought to be serious about that. As you know the Board of Trade is the Committee of the Privy Council for Trade. The Speaker is chairman, I think. That has not met since 1834. The Cabinet is a committee of the Privy Council. Certain Orders in Council are carried out in the Palace. William [HAGUE] will have attended. You go there and the Queen reads certain things and says "I agree" or "consent" or whatever and they become law. But, as a Privy Council, it has no meaning except in one other sense: prime ministers talk to leaders of the opposition on Privy Council's terms. So I have no doubt that William was approached by the Prime Minister to discuss sensitive matters where it was felt that it would be inappropriate to make them public, and certainly in war time that is always done. Otherwise the Privy Council does not really mean very much. It is not necessary.
CHAIRMAN Can you tell us more, Mr Hague?
MR HAGUE - I have only attended meetings of the Privy Council while in office as a secretary of state. Of course there are meetings of the Privy Council, quite a few meetings every year, so it is not quite right to say it has never met, but it does not meet as a full body, only the Executive members of it.
CHAIRMAN - A meeting of the privy councillors, of some privy councillors? Could I just get this on the record.
MR HAGUE - When the Privy Council meets, the meeting generally consists of the President of the Council and four or five members of the Privy Council who are serving ministers. Various Orders in Council are read and the Queen signifies her consent—and if she did not we would all be absolutely thunderstruck. So it is more the ceremonial part of the constitution than the efficient part of the constitution. I think Tony may be slightly exaggerating its importance if he hopes eventually he can veto something in the Privy Council. I am writing a book about 18th century politics and I have just been writing the chapter about the madness of the king, King George III. It is the Privy Council that meets to examine the king's doctors and to work out whether the king really has gone mad but it is then Parliament that sets the terms of the regency and has to approve what happens to the monarchy. So the Privy Council did not even have the decisive say in those circumstances. It clearly does not have significant political power is the answer to that. It is one of the forms through which the royal prerogative is exercised. That is all it is.
CHAIRMAN - So the Privy Council does not have significant political power.
MR HAGUE - As such. The people on it have immense political power but not as a body in itself.
MR PRENTICE - I have in front of me a quote from the latest edition of Bradley & Ewing's Constitutional & Administrative Law.
CHAIRMAN - He carries it everywhere!
MR PRENTICE - The edition is 2003, so it is bang up to date. We are told that issues of constitutional importance are often referred to the Privy Council and there are ad hoc groups set up, and it gives an example here: "to examine the practice of telephone tapping and matters affecting state security". My question is this: Is there a whole secret state out there, that is being managed by ad hoc groups of privy councillors, that we know nothing about?
MR HAGUE - No, I do not think so. I think those groups are groups of people with Executive responsibility who happen to be privy councillors, rather than needing to be privy councillors. They are a sub-group set up of the Privy Council as a separate institution. But Privy Council is the cloak that covers those activities.
CHAIRMAN -If they are ministers—presumably that is what you are saying—why do they not meet just as a ministerial group to review telephone tapping or state security?
MR HAGUE - It would make no practical difference of which I am aware.
CHAIRMAN - Why go through the whole rigmarole of Privy Council business?
MR HAGUE - A very valid question.
MR BENN -To be a privy councillor is an honour. It has no meaning beyond that. Of course the Judicial Committee of the Privy Council has specific functions, but it is not the Privy Council, it is the Judicial Committee. I have had students appeal to me when they have failed in their degree and you have to write to the Privy Council because they have the right to review university matters. I have never had a success because no committee of the Privy Council is going to say Mr So-and-so should have got his BA, but they are right to pursue it that way. I think it would be much better to think of a privy councillor like an honour. And it is an honour given. You cannot be in the Cabinet without being a privy councillor—because I tried to get out of it when I was made Postmaster General and they said, "Well, you don't have to be a privy councillor but you will not be in the Cabinet" and I capitulated at once! Otherwise it has no meaning whatsoever. Quite a lot of people are made privy councillors who are not even ministers.
CHAIRMAN - That is my question, you see. You are both Right Honourables and I am just an Honourable. I can understand why people become privy councillors if they have been in the Cabinet but there are other individuals who are just plucked out of the air.
MR BENN -Yes, it is like the honours system. I think Len Murray, the General Secretary of the TUC, was made a privy councillor. It is doled out because, as you know, the Crown is the fount of honour, but the pipe has been moved to Downing Street and it all pours out of Downing Street now. It is the fount of honour, diverted to Number 10.
CHAIRMAN - You see, I would not get exercised about this if it was just some ceremonial thing and people could put the magic letters `PC' after their name. You know, if that is what they get off on, that is fine. But if they have serious Executive powers, then that is a different kettle of fish, is it not?
MR BENN -They are derived Executive powers. The one personal power, and I have never exercised it but I am keeping it in reserve, is the right of personal access to the Queen. I could write to the Queen and say, "As a privy councillor, I want to come and see you." What her response would be, I cannot anticipate! There is a power: privy councillors have a right of access.
MR HAGUE - You could try it. Other heads of state have given you an audience!
MR BENN -I tried to see the Prime Minister about that. It is harder to see the Prime Minister than it is to see Saddam Hussein!
MR HAGUE - I share Tony's analysis of this. The committees that you refer to of the Privy Council are simply another form of government committees. They are not attended by people by virtue of their membership of the Privy Council; they are attended because they are the responsible ministers. As I was explaining earlier, the full meetings of the Privy Council usually only consist of four or five Cabinet Ministers, and those of us who are privy councillors but not in the Government are not invited to the meetings.
MR BENN -Could I make one point in respect of Europe which I think is not widely appreciated. When you go to Europe to the Council of Ministers as a minister, you have the plenipotentiary powers that are referred to in David Davis's charter, or whatever it is called, but when you go there it is the only committee I have ever attended in my life where you are not allowed to put in a paper. In every committee I have ever attended—Cabinet, National Executive Committee, House of Commons—you can submit a paper, but in Brussels the only people who can submit papers are the commissioners, who are bureaucrats. When you get to Brussels, although you come full of powers, you cannot say anything other than yes or no to what the Commission proposes. The experience of this is to me absolutely astonishing. You can say no to the Commission and they go away and think of something else, and then you say yes or no to that. The royal prerogative powers are limited within the European context. Of course, as you know, the Council of Ministers is the real parliament of Europe: it makes the laws of Europe. It is the only parliament in the world that meets in secret too. I tried to get them to open up when I was president but they nearly strangled me at the thought that the public would be able to see what went on in the Council of Ministers. But that is an extraordinary aspect of the powers. You go and you are full of power, plenipotentiary power, and you cannot then put in a paper. I think this is one aspect that ought to be looked at in the context of our relations with Europe.