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Accession or Election

Stephen Sedley

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Mike Marrah

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The single surviving plenary function of the Privy Council, to which all the UK’s appellate judges (of whom I was one), along with bishops, Cabinet ministers and other dignitaries, are sworn for life on taking office, is to assemble on the death of the monarch as an Accession Council in order to nominate and proclaim the successor to the throne. Like any gerontocracy its composition is not too stable, but on average it numbers above 700.

I chose not to attend the meeting of the Accession Council, but not by way of protest or boycott. It had been apparent for a long time that there would not be room for the whole membership to attend when eventually an Accession Council had to be assembled. So it was decided that a batch of places would be reserved for the principal state office-bearers, former-Prime Ministers and the like, and volunteers would then be sought to reduce the remainder to a manageable number, choosing among them by ballot if there were still too many. Less out of public spirit than out of physical cowardice, I volunteered to be omitted and was sadistically gratified, watching the Accession Council meeting on television, to witness the squash I had escaped.

The role of the Privy Council

In addition to its ceremonial roles, the Privy Council has a considerable range of law-making powers, some given to it by statute, others—including the prorogation of Parliament and the governance of the UK’s remaining colonies—stemming from the royal prerogative; but it never meets as a body in order to exercise them. These functions have for many years been monopolised by the Cabinet and are usually dealt with by departmental memorandum. The practice is based on a theory of dubious authenticity that, since the monarch acts on the advice of her or his ministers, only the government of the day can give advice and this it does in the name of the Privy Council. Matters on which other privy counsellors might have something useful to contribute go unaddressed. In consequence, occasional issues of real importance are conventionally concluded by the monarch simply saying ‘approved’ to a draft Order in Council which a minister has produced and which the monarch is not expected to read—indeed, given the requirements of political neutrality, is expected not to read. No draft is published, no prior announcement made. This is how, for example, Jack Straw’s order-in-council exiling the Chagos islanders in perpetuity came to be made.

What if the powers of the Privy Council were abolished?

The Privy Council, with its clandestine legislative and prerogative powers and its antiquated oath of allegiance, looks like one of the better arguments for a republic. So, it’s worth first considering how it would be if—without instituting a republic—these powers were either abolished or distributed by statute to independent bodies or to ministers answerable to Parliament. In a Privy Council-free scenario, the head of state would still be a hereditary monarch, symbolised by the Crown, and the state’s main functions would continue to be performed in the Crown’s name by the legislature, the executive and the judiciary, each with its own sphere of power or influence, but none of them open to interference by the head of state: a continuation, in principle and substance, of the settlement arrived at in 1689 and still operative today.

What would stop would be the fiction that the Crown is actually exercising the prerogative powers of making treaties, deploying the armed forces or granting honours. Redistribution by statute would transfer to secretaries of state all delegated powers—for example, the power to make orders required by the UK’s membership of the United Nations—at present allocated by law to the Privy Council and accordingly already open to judicial review if misused. Prerogative acts, such as the making of treaties, would become in law what they already are in practice—ministerial acts, open to parliamentary scrutiny for their substance and to judicial review for their legality. The grant of honours, if it is to continue, should arguably go to a commission wholly independent of government, giving ministers no special access.

Why not adopt a modern republican constitution?

Why not, then, adopt a modern republican constitution and eliminate the Crown, conferring the office of head of state on an elected president? We’ve recently experienced what is likely to follow. An analysis made by the campaigning body Hacked Off suggests that in the Tory party’s leadership election (and so in the race to become Prime Minister), the Daily Mail ran almost nothing but positive stories (about 94 per cent) on Liz Truss, and almost entirely negative stories (92 per cent) on Penny Mordaunt who had an early lead. On Truss’s eventual challenger, Rishi Sunak, 82 per cent of the Mail’s coverage was negative and about 10 per cent positive. In an earlier era it was Lebedev’s freesheet Evening Standard which promoted Boris Johnson in order to keep Ken Livingstone from regaining the mayoralty of London. Who better than Johnson, now unseated through his own vices from the premiership, to be president? Unthinkable?

Think Trump; think Bolsonaro. Think Farage?

The Church of England and the House of Lords

And then there’s the Church of England. Who will be—who can be—its supreme governor and defender of the faith if there is no monarch? On whose head will the archbishop pour the consecrating oil? Henry VIII, with characteristic insouciance, omitted to make any provision for this, and so far as I know none has been made since.

If this were the only problem, a solution—even if it was the customary fudge—could no doubt be found. But without doubt the largest iceberg in this sea is the House of Lords. Life peerages, a well-subsidised reward for political or financial loyalty, and occasionally for celebrity, are in name the monarch’s appointments, but in real life the Prime Minister’s. If the promoters of a republican constitution need a workable replacement for this massive area of patronage, so equally do those (myself included) who consider it wiser to keep the Crown as the nominal source of state power.

The 1911 Parliament Act

The 1911 Parliament Act, with its optimistic prefatory declaration that it is only the first step towards the democratisation of the upper chamber, still sits forlornly on the statute book. Of the numerous official and unofficial schemes for reform which have come and gone in the intervening years (the latest a comprehensive rebuild centred upon a House of the Nations and Regions designed by Gordon Brown), the one that in my mind still epitomises them is the one published in 2000 proposing, among many other things, that the number of bishops of the established church sitting (presumably by divine right) in the upper house should be reduced from twenty-six to sixteen. On the day it was published I ran into the leader of the upper house, an old colleague:

‘Gareth’, I said, ‘why sixteen?’.

‘Why indeed’, said Gareth Williams, and we went our respective ways without even getting round to the ninety-two elected hereditaries still gracing the Lords’ benches.

The fact is that, despite its affinities with a pantomime horse, the upper chamber has a higher standard of debate than the lower and enough of its members earn their parliamentary keep to justify their per diem allowances, if only as surrogates for an inefficient and under-resourced lower house. It’s a long time since the House of Lords was briefly abolished as ‘dangerous and useless’ and equally long since reformers first urged that MPs should be prohibited from taking second jobs (a proposal which today needs to go with a considerable salary hike). Uncoupling the legislative system from the honours system may be both the hardest and the most necessary of all, because—unlike the judicial system, where honours follow from appointment and appointment from qualification—the conferment of a peerage brings with it a measure of political power which the holder may be unqualified, even unfit, to exercise.

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    Stephen Sedley

    Stephen Sedley is a privy counsellor, former judge of the High Court and Court of Appeal.

    Articles by Stephen Sedley
Volume 95, Issue 1

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Volume 95, Issue 1

Includes a collection on the Future of Public Service Broadcasting, edited by Suzanne Franks and Jean Seaton. This features articles such as 'The Governance of the BBC' by Diane Coyle; 'A Public Service Internet - Reclaiming the Public Service Mission' by Helen Jay; and 'BBC Funding: Much Ado about the Cost of a Coffee a Week' by Patrick Barwise. There are a wide range of other articles including 'Back to the Stone Age: Europe's Mainstream Right and Climate Change’ by Mitya Pearson and 'Labour, the Unions and Proportional Representation' by Cameron Rhys Herbert. Finally, there is a selection of book reviews such as Lyndsey Jenkins's review of Fighting For Life: The Twelve Battles that Made Our NHS and the Struggle for Its Future by Isabel Hardman, and Victoria Brittain's review of Three Worlds, Memoirs of an Arab-Jew by Avi Shlaim.

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