upton-on-line

Special antiquarian number

22^nd November 2001

In this edition

Upton-on-line reflects on swearing fealty to Her Majesty, Queen Elizabeth II as a member of Her Majesty’s Privy Council.

Doing things by the book

When upton-on-line was appointed a Privy Councillor two years ago a surprising number of (surprisingly ill-informed) friends assumed that he had, from a standing start, managed to clear all the hurdles in the judicial hierarchy at one leap and insinuate himself into the ethereal realms in which New Zealand legal disputes reach their apotheoses. (U-o-l assumes that’s the plural of apotheosis!)

Fortunately for the efficient and learned despatch of cases, no such metamorphosis is possible. Only years of grinding away as a barrister, high court judge and then appeal court judge hearing interminable murder trials or Maori fishing disputes can unlock the doors to the Judicial Committee of the Privy Council. But an almost equivalent torture – grinding away for years in caucus meetings, cabinet committees, cabinet meetings and (when we still did them) Post Office openings – can lead to membership of the Privy Council itself.

And it was those two paths – the high road and the low road in terms of public esteem, so to speak – that led Sir Kenneth Keith and yours truly to Buckingham Palace on 14^th November 2001 to do something that people have been doing since at least the time of the Norman Conquest: swearing loyalty to the reigning sovereign as newly appointed Counsellors.

The ceremony is perfectly simple and occurs as the first item of business at an ordinary monthly Privy Council meeting at which the Queen meets a small group of Ministers (led by the President of the Council – currently Robin Cook) to give her assent to a raft of regulations, proclamations, and judgements of the Judicial Committee. Sir Kenneth and upton-on-line were accompanied by a veritable old hand on the Council, Rt Hon Paul East QC, who was there to make sure the colonials watched their Ps & Qs.

The business side of the meeting was pretty familiar to upton-on-line who has watched two Governors-General – Dame Cath Tizard and Sir Michael Hardie Boys – personfully wade through the reams of legislation and regulations we forced on them as Her Majesty’s representatives.

But the oath of office was a little different from the sort of oath taking that upton-on-line had undertaken in seven different New Zealand parliaments. Rather than sharing a bible with alphabetically proximate parliamentary colleagues under the Presbyterian eye of Dave McGhie (the Clerk of the House), upton-on-line found himself on one knee clutching a copy of the New Testament and than, two paces forward on another rose coloured kneeler, kissing Her Majesty’s outstretched hand.

This was slightly more familiar territory for Sir Kenneth whose legal valour has seen him kneel previously to arise as a knight of the realm. Today’s title-less NZ honours are apparently proof of the fact that chivalry has evaporated from this world. Her Majesty’s gloveless hand is the sole remaining link with that world. Here are the two oaths taken by new Privy Counsellors. First the familiar oath of allegiance:

And secondly the (much longer) Privy Counsellor’s oath which, mercifully, is read by the Clerk requiring only an "I Do". (Upton-on-line leaves it to readers to consider whether technically a Privy Counsellor can express republican sentiments without breaching the oath!):

Oaths taken, the meeting reverted to its daily business, all dispatched in five minutes or so. Needless to say, having taken the above oath, upton-on-line is forsworn not to reveal its substance. But he can attest that, by tradition, meetings are held standing up – an ‘innovation’ instituted by Queen Victoria with any eye to assisting the speedy completion of business.

The historical backdrop

The Privy Council goes back about as far as it is possible to go in British constitutional history. As the council of the Norman Kings – the curia regis – it was originally the key organ through which the King ran the kingdom. (The formula of kings having a council of wise men – a witangemote - goes back even further into the world of the Anglo-Saxon kings in the 300 years or so before the Norman invasion of 1066).

In the first instance it did everything combining advisory, judicial and executive powers but that only made sense at a time when there were the most rudimentary organs of government. Growing complexity meant the evolution of other organs of government. The result is that just about every other institution of executive government in Britain, together with the judicial system, can trace itself back to a moment when a function dropped out of the curia or its successor.

Parliament and the courts of law had become clearly distinct entities from the 14^th century onwards, but they had to put up with interference from the council for three centuries more. As late as Henry VIII’s reign the council held (for a brief period) legislative power alongside that of Parliament. Similarly, it continued to interfere in judicial matters. It was a committee of the council that evolved in the late 15^th century into the Star Chamber which was only abolished on the eve of the civil war in 1641.

Attempts to revive the council’s influence under the Restoration foundered when Charles II turned increasingly to a favoured cabal of advisers – a step in which we find the origins of cabinet government. From the reign of George I (who, being a German speaker never attended its meetings) the business of government passed decisively into the hands of the committee of ministers that today makes up the cabinet.

The Privy Council in contemporary Britain

Notwithstanding the evolution of roles that has left the Privy Council as a purely formal forum in which formal executive government is carried out by the Sovereign (the approval of legislation and regulations etc) the effluxion of centuries means that a fascinating cocktail of functions are still performed in the Privy Council.

In Britain (unlike New Zealand) all cabinet ministers become members of the Privy Council. They derive their power directly from the Queen and are personally responsible to her. She alone can dismiss them – interestingly, the Prime Minister can invite Ministers to fall on their swords but if one were to refuse, only the Queen can insist.

The business of the Privy Council (some of it coming through formal committees such as the Judicial Committee) falls under two headings – prerogative business (matters requiring the Queen’s approval but not requiring Parliament’s consent) and non-prerogative business (where Parliament has given the Sovereign in Council power to approve things).

The prerogative business encompasses:

1. The dissolution and prorogation of Parliament (obviously on the advice of the Prime Minister but not subject to any statutory rule or procedure)
2. The grant or amendment of Royal Charters to all sorts of professional institutions, charities and ancient City livery companies
3. Approving the recommendations of the Judicial Committee (which includes appeals from New Zealand)
4. Approving various matters relating to the Anglican Church
5. Approving the names of the High Sheriffs – the Crown’s agents at County level. The institution of sheriffs is as old as the Privy Council itself going back to the Saxon era. The process of appointment is marvellously eccentric and involves the Queen pricking the chosen names with a bodkin – a large needle – when they are presented to her on a scroll held for her by an apparently nervous Clerk of the Council who has to make sure the needle hits the right target. (Only the British could keep this going with a straight face, explaining – with questionable historical probity – that it dates back to an occasion when Elizabeth I was asked to approve the names when she was doing a spot of embroidery in the rose garden at Richmond Palace. Having no pen to hand she used her needle.)
6. Approving statutes and appeals from a small number of ancient universities, most notably Oxford and Cambridge.
7. Most deliciously, approving legislation from the Channel Islands. These are all that is left of the Dukedom of Normandy, the other half of the early mediaeval empire that King John successfully lost in the early years of the 13^th century. For the purposes of the Channel Islands, Queen Elizabeth presides as the Duke of Normandy – a little reminder that for 150 years after the Norman Conquest, England and half of France were part of a multi-national empire.

Non-prerogative business is, by contrast, largely of the unromantic variety being secondary legislation (regulations) made under powers granted by Act of Parliament. One exception (of a literally romantic nature) is the issuance of declarations of consent to marriage in respect of members of the Royal Family under the 1772 Royal Marriages Act.

The New Zealand situation

In New Zealand, the Queen in right of New Zealand (as she is technically styled) exercises her powers through her Governor-General whose riding instructions are found in something called the Letters Patent. They encapsulate what is left of the prerogative powers in New Zealand – in other words, those things done by the Crown that aren’t traced to some statutory authority. There aren’t many – exercising the prerogative of mercy is about the only one left.

Most importantly, the Letters Patent establish the basis of Executive Government which is called the Executive Council. It meets most weeks under the chairmanship of the Governor-General and with a minimum of two ministers present. They also provide for the appointment of Ministers (who hold warrants).

But despite some similarity of functions, the Executive Council has no connection with the Privy Council. That remains a specifically British beast and appointment to it is (at least for politicians) effectively an honour which carries with it the Rt Hon title. (Obviously, it’s more than an honour for judges since, by becoming members of the Judicial Committee, they actually have to do some work!) The only time the Privy Council has ever sat in New Zealand is for the swearing in of members – something that happens occasionally during one of the Queen’s visits to New Zealand. With the demise of the British honours system in New Zealand under the Bolger government, appointment to the (British) Privy Council is, in effect, the last remaining ‘imperial’ honour in New Zealand.

Anyone wanting a quick guide to New Zealand’s constitutional arrangements (and how they link to the Crown) should visit www.dpmc.govt.nz/cabinet If you click on the Cabinet Manual heading, you will find a nice crisp summary by upton-on-line’s fellow oath taker, Sir Kenneth Keith!