If You Want to Understand How the Crown Meddles in Democracy, We Need to Talk About the Privy Council

Far from being purely symbolic, the British monarchy still has a seat in the 'world's courtroom'.

by Kojo Koram

11 March 2021

The queen and prince philip
The Queen and Prince Philip (Titanic Belfast/ Flickr)

The ultimate winners of the circus that’s arisen in response to Harry and Meghan’s interview with Oprah Winfrey are the creators of The Crown. If the writers of the Netflix drama feared they might eventually run out of material, the Duke and Duchess of Sussex have just provided them with another few series’ worth of titillating content, containing all of the show’s favourite themes – marital strife, sibling rivalry and the impossibility of trying to carve out a normal family life within ‘the firm’. 

Yet, despite its name, there is actually precious little about ‘the Crown’ – by which I mean the specific state power distinct from the monarch or the royal family –  in the show, which largely neglects to interrogate how it fits into a modern representative democracy beyond its obvious symbolic power. That said, the issue does come up in an episode in season three about Daily Mirror chairman Cecil King’s plot to seize power from prime minister Harold Wilson

Whilst planning a coup against Wilson for the sin of being a Labour leader with a northern accent, King tries to recruit the royal family’s patriarch, Lord Mountbatten. In the show, Mountbatten is tempted but explains that “a coup d’état in the United Kingdom doesn’t stand a chance!”  Ultimately, if there was ever a coup in Britain, he says, authoritarian power would be wielded through the power of the Crown because it already sits there, underneath our representative democracy.

 

 

Case in point: almost entirely absent from the show is perhaps the most shadowy and ritualistic body within Britain’s complex constitutional network; the Privy Council. Defined by the Interpretation Act 1978 in a willfully opaque fashion: “the Privy Council means the Lords and others of Her Majesty’s Most Honourable Privy Council”, in practice, it is one of the remaining vehicles through which the power of the Crown can still be exercised.

The Privy Council is the institution that houses the formal advisers of the monarch of the United Kingdom. The advisory role is, of course, a fiction; Queen Elizabeth is not making the decisions here (although the current president of the council is another Victorian throwback in Jacob Rees-Mogg). Rather, the council is a channel through which the government of the day can, on occasion, bypass Parliament and the checks and balances of representative democracy, in order to issue decisions under the name of the monarch. The full extent of the council’s powers is not systematically recorded or regulated. But what is certain is that it has been used by governments to evade restrictions such as the Human Rights Act or even to forcibly expel whole populations from their land – a fate suffered by the Ilois people of the Chagos Islands, who in 1973 were deported from their home by Wilson’s own government to make way for the building of a USA military base. 

 

 

In a crisis, the government has the power to declare a state of emergency, invoking the power of the Crown through the Privy Council to give itself the necessary powers to rule directly. These are part of the unique constitutional powers that Mountbatten is supposed to be referring to within the show. But this isn’t just a historically disputed plot of a Netflix drama. Since the Northern Ireland Assembly was first set up in 1998, these very powers have been invoked whenever conflicts between loyalists and republicans have caused the breakdown of governance. During periods when Stormont was suspended, Westminster has been able to administer the country through the orders of the Privy Council, passed by the Houses of Parliament. Similarly, in 2009, the powers of the council were used to suspend the constitution of Turks and Caicos Islands.

The council also houses its own court, one that decides legal issues that arise, not only in Britain, but across an array of other overseas territories and Commonwealth countries. Known as the Judicial Committee of the Privy Council, in a past life this body served as the final court of the British empire. The court was created in 1833 to cohere the law across the multi-jurisdictional structure of the British empire by creating a pathway through which colonial subjects could appeal directly to the Crown. The basic idea was that if people had to accept the British monarch as their sovereign, then they should, in theory, have the right to appeal directly to that monarch, whether they lived in Barbados, Burma or British Somaliland. 

Much of the scope of the Privy Council was lost when the wave of decolonisation swept through the globe in the mid-to-late twentieth century. One by one, territories broke off from the empire, claimed their independence and then, often with a small delay, removed the British monarch as their head of state and erased the appeal to the council from their domestic legal systems. But, whilst depleted, the Privy Council role as the world’s courtroom refuses to die. Today, the Judicial Committee of the council is still the final court of appeal for British Overseas Territories, such as the Cayman Islands and Bermuda, Crown Dependencies like Jersey and Guernsey and even for independent, sovereign nation-states like Jamaica, the Bahamas and Grenada. Deep into the 21st  century, legal problems in various corners of the world are still ultimately resolved through this archaic system.

What the Netflix show never quite manages to depict is how the Crown remains the authoritarian heart of Britain’s uncodified constitution. Its current role has congealed with the sovereignty of parliament over the centuries in order to anchor the flexibility required to govern an ever-growing empire. Like a dilapidated old grand piano that hasn’t been refurbished for years, it is impressive at first glance but upon closer inspection is shown to be out of tune with the modern world. 

Given that these echoes of feudal rule are still carried within bodies like the Privy Council, why has there never been any serious attempt to reform the powers of the Crown? A hundred years ago, as the British empire began to fall and representative democracy was on the rise, it would not have been outrageous to suspect that the British monarchy would not survive into the new millennium. Yet, its only major crisis came a quarter of a century ago when the public backlash following the death of Princess Diana briefly threatened to wash the institution away. In the aftermath of the car crash, support for the monarchy fell to its lowest level in modern history, with poll numbers showing for the first time that less than half of the population believed the country would be worse off without it. 

The atmosphere in Britain at the time signalled a wider appetite for change. Labour prime minister Tony Blair had just ridden into Downing Street on the back of a giant mandate, with comprehensive constitutional reform a central tenet of his programme. Just a month after Diana died, a referendum in Scotland voted overwhelmingly in favour of devolution. The following year, the Human Rights Act was passed. And the year after that came the reform of the House of Lords. Did this political moment present the ideal opportunity to review the role the Crown played within Britain’s constitutional setup? Probably not, considering that Blair wasn’t even able to get hereditary peers removed from the House of Lords, meaning that even after its ‘reform’, it remains one of the least democratic legislative upper houses in the world.

Instead, Blair used his popularity to shield the royal family from the villagers’ pitchforks. Since then, no politician, not even lifelong republican Jeremy Corbyn, has been willing to risk putting the question of the monarchy back on the table. Perhaps because, rather than undermining elected governments, the powers of the Crown have been a useful tool for prime ministers across the political spectrum to draw upon, whenever they wish to flex some authoritarian muscle. 

The outpouring of anger provoked by Harry and Meghan’s disclosure of the racism and bullying they suffered during their time in ‘the firm’ may dampen over time. But what will remain constant is the need for any serious left project in Britain to, at some point, confront the question of the anti-democratic power still vested in the Crown. That isn’t going to go away by itself, regardless of the ongoing failings of Britain’s most dysfunctional family

Kojo Koram is a writer and an academic, teaching at the School of Law at Birkbeck College, University of London. In addition to his academic writing, he has written for the New Statesman, the Guardian, Dissent, The Nation, and The Washington Post. He is the editor of The War on Drugs and the Global Colour Line (Pluto Press 2019).

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