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Brexit and the Privy Council

The Order in Council of the 28th August 2019 to suspend ( or "prorogue" ) the  UK Parliament from a day no earlier than 9th September 2019 and no later than 12th September 2019 until 14th October 2019 has drawn attention to the powers and privileges of the Privy Council , the mediaeval institution through which the Queen as Monarch gave her approval to this decision.

Patrick O'Connor QC of Doughty Chambers wrote a well -researched and informative Article in 2009 on this ancient institution for "Justice", the independent law reform and human rights charity , which is well worthy of a fresh read now in the light of the latest developments on the Brexit front.

Mr O'Connor highlighted the mysterious and somewhat esoteric nature of the Privy Council's powers and the lack of transparency in its proceedings and recommended as part of his conclusions that "fundamental consideration should be given to the future role, and even continued existence, of the Privy Council".  This thought certainly has added resonance in the present circumstances.

The Privy Council, one whose principal roles is to "advise" the Monarch on matters affecting the exercise of the Royal Prerogative,  is overseen by the Lord President of the Council ( currently the Right Honourable Jacob Rees-Mogg, the current Leader of the House of Commons) , who is responsible for Privy Council business and is head of the Privy Council Office, effectively the secretariat to the Privy Council. 

It was Mr Rees-Mogg who together with two other Privy Counsellors, Mark Spencer ( the  current Government Chief Whip in the House of Commons) and Baroness Evans of Bowes Park ( the current Leader of the House of Lords),  took the trip to Balmoral to get the Queen's approval to the Order in Council to prorogue Parliament.

The Privy Council seems to control its own proceedings but the convention appears to be that three Privy Counsellors who are  supporters of the  Government current at the time are sufficient to form a quorum in the presence of the Monarch for meetings of the Privy Council. Non-Government supporters on the Privy Council conventionally do not play a role in relation to the Privy Council's law-making role.

The Order in Council proroguing Parliament is now under legal challenge before the Courts on the ground it appears of some kind of abuse of powers infringing the sovereignty of Parliament and the outcome of such legal challenges will affect the future course of the Brexit debate.

A more long-term consequence  is likely to be a closer examination of the different functions of the Privy Council - whether in terms of "Orders in Council" or the similar but different "Orders of Council" connected in either case with the Royal Prerogative  or  of its court- type functions when acting through its Judicial Committee or of other miscellaneous functions that it has   - and its role in the modern world.

 There has to be a point in any constitutional framework where ultimate power can be said to reside to deal with political or constitutional issues , at least of a procedural nature, that cannot be resolved in any other way and the Privy Council has played its part in fulfilling that function. It may be that in the future some kind of constitutional court will replace the Privy Council in undertaking that function, at least to some degree. A wish on the part of some  to maintain the  inherent flexibility of the United Kingdom's presently  unwritten constitution would, however, need to be weighed in the balance against any radical reform.

The UK constitution continues to evolve with the passage of events and time.