“This is a problem of real substance, well beyond mere harmless and quaint ceremonial. It is surely a loophole in our constitutional safety net – a way in which hard law can be directly created, affecting fundamental rights, whilst by-passing Parliament and any prior accountability. The very same issue was a matter of controversy between the Tudor Kings and their courts and Parliaments. This battle between autocracy and democracy was won by Parliament over 450 years ago. Has this victory now been ceded by default?”
Thus Patrick O’Connor describes prerogative Orders in Council – a means by which ministers, acting through the Privy Council, can create primary legislation without recourse to Parliament. And his concern is not hypothetical – as recently as 2004 Orders in Council were used to block the return of Chagos Islanders forcibly removed from Diego Garcia in 1971.
In The Constitutional Role of the Privy Council and the Prerogative Patrick O’Connor examines the history, membership and powers of the Privy Council. His conclusions are damning. The Privy Council exercises considerable power, yet is a dysfunctional relic of an outdated culture of deference. It is an institution that is, in the words of the government’s Governance of Britain green paper, ‘stretched beyond evolutionary reform’. Its future role, even its continued existence, should be subject to fundamental consideration.
Patrick O’Connor QC
26 January 2009