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The programme posed the question, as did the noble Lord, Lord Rodgers: what are privy counsellors for? Certainly, when you look into the matter, there are shades of Blackadder about the paraphernalia around the Privy Council. I found it of interest that we have some 550 privy counsellors today, whereas Henry VIII made do with about 40. On the other hand, it was a whole lot more dangerous to be a privy counsellor for Henry VIII. Also, and this has run through both contributions so far, there is a seriousness about the Privy Council and its powers.

First, as the noble Lord, Lord Rodgers, rightly acknowledged, there is a powerful power of patronage for the Prime Minister in being able to grant the title “right honourable”. I remember when I worked for Mr Callaghan, as Lord Callaghan then was, as an adviser in 10 Downing Street, he asked me to sound out a Labour Member of Parliament about whether he would like an honour. I always remember that the MP said to me, “There is only one honour I’m interested in and that is ‘the right honourable’ in front of my name”. That is true of most practising parliamentary politicians. In the programme that I referred to, Michael Portillo said that “right hon.” was the best club badge that you could get in the Westminster village, and I think that that is true.

It would not really matter much if the council were no more than that—a quaint anachronism, one of the more dignified parts of our constitution or, as Quentin Letts, in his usual fashion put rather cruelly this morning, a prize for the fading “alumni of Parliament”. There is also, as the noble Lord, Lord Norton of Louth, pointed out, a real advantage in having the council as a ready store of licensed secret-keepers for use in inquiries. The points that he made this evening bear further consideration as we look at constitutional and parliamentary reform. Those were worthwhile ideas.

However, there is a more serious accusation against the Privy Council—that it is a loophole in our democracy and accountability. This morning, in that well listened-to programme, Mr Jack Straw confessed that the Privy Council could be used in “exchanging legitimacy for speed”. He was referring to the particular instance of the use of the Privy Council in the case of Diego Garcia and the right of return of the Chagos islanders to their homeland. It is one single example, but it is such a shameful example that it bears examination. 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 and then upheld by this House.

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Tonight is not the time to examine the sad story of Diego Garcia in detail, but the more that is revealed of that story over 40 years, the more shameful it is for successive Governments of all political hues. However, it is right to ask whether the way that Privy Council powers were used does not shine a harsh spotlight on its powers and its uses by government. I await with interest the constitutional reform Bill, where we may be able to look at some of these matters.

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. Although we have had some interesting comments about the more pleasant aspects of being called right honourable, being a member of the Privy Council and having this parliamentary badge, we must also look, particularly as we look towards the constitutional reform Bill, at whether some of the powers of the Privy Council are not in fact a useful smokescreen for an Executive who want to avoid parliamentary scrutiny.

7.59 pm

Lord Jopling: My Lords, I congratulate the noble Lord, Lord Rodgers, on raising this matter. I have not been a privy counsellor for quite as long as him. I have been a privy counsellor for almost precisely 30 years and, like him, I have attended a good many meetings of small groups of the Privy Council with Her Majesty. While I hope profoundly that I enjoy a long life, I hope equally profoundly that I never have to attend the one great meeting of the Privy Council on the death of the Sovereign.

Having listened to the debate, I honestly think we are making far too much of it. It is all a bit of a red herring. We heard the noble Lord, Lord Rogers, talking about the moment, that great moment in the Ministry of Defence, when he became a privy counsellor and he was allowed to talk about nuclear matters. We then heard about senior members of the armed services who are not privy counsellors, who are clearly involved in all this. The fact that these matters are allowed to be shared with a privy counsellor in the Ministry of Defence is a total, unnecessary red herring—I think it is rubbish.

My old friend, the noble Lord, Lord McNally, talked about Members of Parliament who felt that the greatest accolade was to have “right honourable” in front of their name. I have to tell him exactly the opposite. In the days when, like him, I was working down at the other end of the building, one heard of Members of Parliament who were offered privy counsellorship who said—this is all apocryphal, you would not want me to enlarge on this—no, no, they would much prefer an knighthood because they wanted recognition for their wives. There are two sides to all of this.

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We heard about privy counsellor-only committees. I suggest to your Lordships that that is just a convenience. If you did not have privy counsellor-only committees, much the same people—because of their distinction, apart from being privy counsellors—would still be put onto committees of that sort. I was once what was, down at the other end of the building, rather rudely called the Patronage Secretary. I think privy counsellorship is a charming accolade bestowed on people of distinction. The problem with it is that it is much too narrow. Far too many privy counsellorships are directed to people who are active in this very building. I would like to see a much wider group of people considered for privy counsellorships, right across the activities of the nation. The distinguished people in the nation are not just the people who work in this building. There are far too many people appointed to privy counsellorship within this building, and I would like to see it widened very much.

I take huge pride in the fact that I am a privy counsellor, and I do not want my remarks to suggest that I do not think that it is a matter of tremendous pride. It is, and anyone who has the privilege of being a privy counsellor understands that it is something very much to be prized.

8.03 pm

Lord Kingsland: My Lords, I, too, add my congratulations to the noble Lord, Lord Rodgers, on introducing this topic today. He seemed to focus, to a considerable degree, on the distinction—it is an important distinction—between the functional role of privy counsellors and the honorific role. The list of privy counsellors, which now exceeds 500, we are told, plainly contains members who fall into both categories.

What should the extent of the functional part of that list be? We know that Cabinet Ministers, by constitutional convention, must be privy counsellors and we need spend no further time on that. It is an admirable convention, because Cabinets regularly consider matters of high national security. It is reassuring to us all that they have taken the oath. The oath, as I recall—we have already been told that its origin is in the 13thcentury—certainly makes the taker wonder whether he can live up to the very high duty that he owes to Her Majesty. In addition to Cabinet Ministers, there are certain Ministers of State, who used to be referred to as those who were not in the Cabinet but of Cabinet rank. Also, certain Ministers who consistently deal with security matters are, or ought to be, privy counsellors.

Then there is the judiciary. The reason a certain number of judges have to be privy counsellors is because of the Judicial Committee of the Privy Council, which still serves a number of dependent territories of the United Kingdom. All members of the Appellate Committee, soon to be translated to the Supreme Court, are rightly privy counsellors; and all the members of the Court of Appeal are also privy counsellors. Not so long ago, the Court of Appeal was a rather small body and its members needed to be privy counsellors because, from time to time, they were called on to serve in the Judicial Committee of the Privy Council to supplement the judges of the Appellate Committee,

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who were simply not available when they were sitting on the Appellate Committee. Now that we have a Court of Appeal numbering no fewer than 38 members, one wonders whether one can say that all of them are serving a functional purpose. At least a proportion of the Court of Appeal’s privy counsellors are, frankly, there for purely honorific reasons. The Court of Appeal’s functional reasons in the old days have not led any Government to have a cut-off number for making privy counsellors in the Court of Appeal such that, when a judge is initially appointed to the Court of Appeal, he is not made a privy counsellor and only becomes one when it is really felt that he is needed to add to those in the functional section.

The other category of privy counsellors applies to Back-Benchers who have had meritorious careers, not as members of the Executive but as parliamentarians. It has become the practice to make chairmen of senior Select Committees privy counsellors. This is an excellent convention. Indeed, I would like to see the day when chairmen of Select Committees had the same status as Cabinet Ministers. It would mean that the task of controlling the Executive in another place was regarded as just as important as being in the Executive. One would wish to see, in future, young people entering another place being in genuine doubt as to which of the two sorts of political career they would like to follow. If it became the well established tradition that Back-Bench Select Committee chairmen were always made privy counsellors, we would be making a good start in that direction.

We have been told that 42 members of the Privy Council have been sworn in over the past year. I have not seen the list because I am not quite sure where to look for it; it is certainly not widely publicised. I suspect that quite an important proportion of this list is purely honorific. With great respect to the present Government, it was a mistake for them to stop the practice that was carried out throughout the 18 previous years of Conservative Government. During those years, unless you were a Cabinet Minister, you could only become a privy counsellor if you appeared in one of the two annual honours lists. I invite the noble Baroness to look back at those. She will find that all other privy counsellors—excluding judicial members of the Court of Appeal, who were appointed automatically—appeared in either the Queen’s Birthday Honours List or the New Year’s Honours List. To my almost certain recollection, there never was a time when more than three or four were appointed in each honours list.

That seems to be an approach worth the Government’s while considering. It not only contains the acceleration of privy counsellors who were made privy counsellors for purely honorific reasons, but also helps the Prime Minister when he is put under pressure to make a new privy counsellor, which we have learnt from the noble Lord the Leader of the Liberal Democrats in your Lordships’ House plainly happened from time to time. I suggest that it is not only the proper approach to making new political privy counsellors outside the Cabinet, but one that the Prime Minister would find extremely helpful.

Perhaps the most important part of the debate this evening is that which deals with the functions of the Privy Council. Two matters have been touched on

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with customary skill, one by my noble friend Lord Norton of Louth and the other by the noble Lord the Leader of the Liberal Democrats.

I had the opportunity to speak on those matters to which my noble friend Lord Norton referred in proceedings on the tribunals and inquiries Bill. I came to almost precisely the same conclusion that he has come to. It ought to be rare for a judge to chair an inquiry, for both the reasons that he gave. First, we know that judges are under intense pressure in the courts, and for the Lord Chief Justice to allow a senior judge to have significant time off to conduct an important public inquiry undermines the task that Parliament has set him. The most graphic example of that is the noble and learned Lord, Lord Saville, who started his inquiry into Bloody Sunday in 1998 and is unlikely to complete it before 2010. Perhaps an even better reason for not using judges is that, inevitably, most inquiries that the Government think are of sufficient importance for a judge to chair are likely to deal with very controversial matters, thus dragging our judges even further into a political world that they have had to grow used to inhabiting since the passage of the Human Rights Act.

I am extremely attracted to parliamentary inquiries, and I find the United States Senate an illuminating analogy. The parliamentary inquiry should be a Joint Committee with no political party having an absolute majority. In important inquiries, the parliamentary membership should be composed of privy counsellors. Those two locks to prevent party politics infecting their operations would produce results that would be more accountable to the public than those that would be achieved by judges. Parliament should not be frightened of taking that role. It is perfectly capable of devising a scheme that would ensure that the decisions made by the inquiry would not be based on party politics.

The other matter—there is no need to do more than touch on it today—is the extent to which the royal prerogative, for the exercise of which privy counsellors are almost exclusively responsible, should be cut down by statute. We have already had the graphic example of the islands. Closer to home, I note that in the draft Constitutional Renewal Bill there is, it seems to me, a clear intention by the Government to substitute many of the prerogative powers in relation to the Civil Service for a statutory scheme. We do not know exactly what changes the Government will make to the draft Bill but I would be—

Lord Brett: My Lords, I am sorry to interrupt the noble Lord but the debate is timed to end at 8.30pm. He is in the 14th minute of his speech and the Lord President of the Council only has 12 minutes to respond, so I ask him for an early end to his contribution.

Lord Kingsland: My Lords, it may be that the debate is being dealt with in a specific way in which case I apologise for talking so long; but it does rather go to the core of our constitution. My understanding is that if a dinner debate overran then the Bill would start after the debate was over. I can think of many dinner debates in the past that have continued for two or two and a half hours. I am not suggesting that I will

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speak for more than two or two and half minutes; but it may well be that since I last spoke in a debate during the dinner hour the rules have been changed.

Lord St John of Fawsley: My Lords, would my noble friend allow me to interrupt him very briefly to ask him if he realises that the points he has made about chairmanship of Select Committees, membership of the Privy Council and providing an alternative career structure were exactly those I made when I persuaded the other place to pass the resolutions on Select Committees? I entirely agree with him; of course I was not as eloquent as him but I was just as convinced.

Lord Brett: My Lords—

Lord Kingsland: My Lords, can I just deal with that point, please? I am most grateful to my noble friend for intervening. I ought to have paid full credit to my noble friend for what he did. I think the changes were completed in 1981 or thereabouts. I suppose that it was the first time since the guillotine resolutions were introduced in the 1880s that there was a real fight-back in another place against the Executive, for which he should be uniquely credited.

Lord Brett: My Lords, I am sorry to intervene but this is a timed debate, limited to one hour. It is made very clear that, except for my noble friend Lady Royall of Blaisdon, all speeches are limited to 10 minutes. She was limited to 12 minutes; she now has only 11.

Lord Kingsland: My Lords, I am quite sure, especially as I speak regularly in the debates on the marine Bill, that those of us involved will be only too delighted to allow this debate to run a little longer in order that the noble Baroness the Lord President of the Council can have ample time to reply. I shall crave the indulgence of the Government Front Bench for one more minute.

Lord Brett: My Lords, I am sorry to interrupt the noble Lord, but there is little point in the House devising for itself conventions and rules about time limits on speeches if they are not observed. It is not only that the Minister is being denied her full time; other noble Lords who have contributed to this debate have taken less than their allotted 10 minutes. Therefore, the noble Lord is being unfair not only to the Minister but to other noble Lords who participated in the debate.

Lord Kingsland: My Lords, I would not want to excite the noble Lord even further. In those circumstances, I shall retire.

8.21 pm

The Lord President of the Council (Baroness Royall of Blaisdon): My Lords, I congratulate the noble Lord, Lord Rodgers of Quarry Bank, on securing this debate. Like the noble Lord, Lord Jopling, and other noble Lords, I take huge pride in the fact that I am a privy counsellor, and indeed that I am Lord President of the Council.

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The Privy Council dates back to at least the 13th century. It formerly ran the whole Government, along with the Exchequer. The Cabinet is a committee of the Privy Council, which is why all Cabinet Ministers have to be privy counsellors too. Some modern departments were originally boards of the Privy Council, such as the Board of Trade and the Board of Education.

These days the Privy Council is simply another way of saying “Ministers collectively”. It is a thoroughly modern example of joined-up government which provides a highly effective means of dispatching a great deal of public business. The Privy Council approves amendments to the byelaws and statutes of chartered institutions. It also approves rules made by the statutory registration councils responsible for the medical and certain other professions, and it makes instruments of government for higher education corporations. In addition, it makes certain appointments to statutory bodies.

The Privy Council is served by the excellent Privy Council Office, which has done a huge amount to remove the perception that the council is too secretive. There is nothing secret about it. The dates of its meetings are posted on the Buckingham Palace website, and the day after every meeting the Court Circular gives details of those who attended. The Privy Council Office is fully committed to open government and its website explains the role in great detail. It is always happy to answer questions about the council’s activities. It also lists all members of the Privy Council, and I can furnish any noble Lord with a list of the recently appointed privy counsellors.

On prerogative business, where there is no legislation allocating the responsibility to a particular Minister, the council provides a mechanism for giving ministerial advice to the Queen, as constitutionally the Queen acts only on such advice. On statutory business, where the use of “the Privy Council” rather than “the Secretary of State” in an Act enables more than one government department to be involved, it allows joined-up government. It also enables the devolved Administrations to be involved, as the First Ministers are all privy counsellors.

There are only small areas of government business which Ministers deal with as privy counsellors. The fact is that almost all the prerogative powers formerly exercised by the Privy Council have been taken over by Parliament. The vast majority of the prerogative business done by the Privy Council is not significant enough for Parliament to want to take it over—for example, the affairs of chartered bodies.

The role of privy counsellors, and indeed of the Privy Council, is often misunderstood. The main misconception relates to the name and the council’s historical role. “Privy Council” suggests secrecy and a body acting as a counterpart to the elected Government. As I have said, the Privy Council simply means “Ministers collectively”. There can be no difference between Privy Council policy and government policy, and Ministers are accountable to Parliament for all matters conducted through the Privy Council.

Although the continued existence of the Privy Council is more or less a constitutional and historical accident, it provides a convenient mechanism for involving more than one government department in policy decisions. Its role has become more important since devolution,

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as it provides a way of ensuring that Ministers of the devolved Administrations are included in cross-border issues that fall to the Privy Council.

The appointment of privy counsellors is made by the Queen on the recommendation of my right honourable friend the Prime Minister. However, I take note of the advice from the noble Lord, Lord Kingsland, that perhaps we should look to what happened under past Conservative Governments, because that might be of assistance to my right honourable friend the Prime Minister. This ensures that the Queen is suitably and properly advised on all matters which come before her in Council.

In determining who should be appointed, a range of factors are taken into account. Those appointed mostly comprise Ministers, other parliamentarians and members of the judiciary. There are no senior or junior privy counsellors, so there are no privy counsellors who are more equal than others. Only current Ministers have a role in Privy Council meetings.

New appointments are normally reserved for those who are involved in affairs of state and who have a close and confidential relationship with the Crown. In practice, this means those who have obtained high office in the executive or the judicial branches of the state, either in this country or in one of the countries of which the Queen is Head of State. It follows that most new privy counsellors are serving Ministers, judges or Commonwealth appointments.

I am glad that the noble Lord mentioned the Judicial Committee of the Privy Council. There appears, these days, to be an expectation by Lords Justice of Appeal that they will be made privy counsellors. This seems to be an automatic right, but it is unlikely that they will all be required to serve on the Judicial Committee of the Privy Council.

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