Down The Privy

The Highest of High Tories, Peter Oborne, writes:

They changed the statutes of the Chartered Institute of Public Finance and Accountancy and gave notice of the ‘discontinuance of burials’ in certain English churchyards.

It was a routine day in the life of the Privy Council, the government body whose origins are so ancient no historian is certain of when it was founded. Much of its business — such as the issue of university charters and regulation of churchyards — sounds innocent enough.

However, I believe that the Privy Council is one of the most sinister organisations in Britain.

Significantly, it dates back to the days when the monarch and their advisers could do what they liked, untrammelled by Parliament, the rule of law or the indignities of exposure by the Press.

Membership of the Council is for life. Appointments are made by the Queen on the recommendation of the Prime Minister. 

Anyone who is made a Cabinet minister is automatically invited to be a member, and the rest (mostly politicians) include the so-called ‘great and good’ — the Commons Speaker, leaders of all major political parties, archbishops, senior judges and some royals.

Through the Privy Council, the monarch possesses several residual powers, including the right to declare war.

For criminals facing capital punishment in Commonwealth countries (a surprising number of which still have the death penalty), the Privy Council is the final right of appeal.

Crucially, too, it is the ultimate repository for the state’s most sensitive secrets and has the power to suppress highly classified information it feels should not be in the public domain.

All this would not matter too much if these powers genuinely were in the hands of the Queen, a woman who has been universally trusted and loved during her long and magnificent reign.

But the Queen does not exercise any of her formal powers. She is obliged by Britain’s unwritten constitution to act only on the advice of her prime minister. This means that government can use the Privy Council as a tool of clandestine, unaccountable power.

As a result, prime ministers use the Council to make arbitrary decisions for which they are not accountable or subject to democratic inspection.

One shocking example of this abuse concerns Sir John Chilcot’s inquiry into the Iraq war, instigated in 2009 and expected to deliver its report with a conclusion within two years.

The inquiry was set up as a ‘Committee of Privy Councillors’, though it is independent of the Privy Council office and reports to the prime minister.

Sir John has now sat for more than six years, with no end in sight. Every day that passes, the inquiry looks more and more like a cover-up. It has, notably, been far too deferential towards witnesses, many of whom are fellow privy councillors.

This could never have happened if Chilcot’s inquiry had been set up by Parliament rather than on privy council terms. MPs could and would have held Sir John (a Privy Councillor himself, of course) to account for procrastination and failure to ask penetrating questions.

Consider also another shaming example: the Privy Council has helped to suppress devastating allegations that the British intelligence services were involved in torture during the so-called ‘War on Terror’ that followed the attack on the Twin Towers on September 11, 2001.

In 2010, David Cameron set up a committee of Privy Councillors to look into these allegations. Five years have passed. The committee discovered nothing material and is now in abeyance.

What a contrast with the situation in the U.S., a country that came into being in deliberate defiance of the British monarchy and the secretive and ‘quaint’ medieval customs that go with it.

In the U.S., a Senate Committee, lead by Dianne Feinstein, mercilessly asked questions of the U.S. Intelligence Agencies and produced a crushing report that revealed the horrific scale of CIA abuses.

Yes, the disclosures were terrible, but the very fact that they were published in such detail was a vindication of the U.S. democratic system.

Had the investigation been carried out on cosy ‘privy council terms’, Senator Feinstein would have got nowhere.

The problem is that in Britain, the Privy Council has become the vehicle of a stagnant political elite. Indeed, anyone who wants to know what the British Establishment is really like should inspect the Privy Council.

It is almost exclusively white, male (12 per cent of members are women) and middle or upper class. It is a murky place, where scurvy deals are struck away from the public eye — a prime example of that very British institution, the old boy network.

No wonder a certain type of politician craves membership. No wonder prime ministers have been unable to resist the temptation to use the Privy Council as a source of patronage, something David Cameron has been particularly guilty of.

For he expanded the size of the Privy Council from 554 in 2010 to a grossly over-inflated 657 in June. At the start of the Queen’s reign, membership of the Privy Council stood at fewer than 300.

Far too many recent appointments have been given to the Prime Minister’s cronies, such as the Tory chairman Lord Feldman and the Downing Street Chief of Staff, Ed Llewellyn.

Mr Cameron has also arranged for Privy Council status to be offered as a consolation prize to disappointed ministers.

I now come to the role of the Privy Council in probably the most disgraceful episode in British post-war history. This concerns the British Indian Ocean territory of Diego Garcia in the Chagos Archipelago.

In the late Sixties, Britain expelled about 2,000 islanders from their ancestral home in order to make way for a U.S. military base, where it was rumoured to have hosted terrible human rights abuses.

As they were fully entitled to do, the Chagossians appealed to the British courts, arguing, not unreasonably, that eviction was illegal. The courts found in their favour and the islanders won the right to return to their homeland.

This appalled the U.S. government, which successfully exerted heavy pressure on Tony Blair in Downing Street. The unfortunate Chagossians still live in exile, thanks to a decision made in secrecy in 2004.

Instead of obeying British law, Mr Blair advised the Queen to use ‘orders in council’ to change the law.

As the Lib Dem Lord McNally told fellow peers in the House of Lords in 2009: ‘The shadier part of our constitution, provided by the Privy Council, allowed that decision to be overturned.’ 

The case of Diego Garcia is a truly shaming example of how the Privy Council can be used by the British state to take away decisions from Parliamentary control, democratic accountability, the rule of law and the eyes of the Press. 

These decisions can only be made because the Privy Council is theoretically (though not actually) under the control of the monarch.

A more recent example of blatant abuse of the Privy Council concerns Mr Blair’s notorious propagandist Alastair Campbell.

When Mr Blair was elected prime minister in 1997, he was determined to place Mr Campbell at the heart of government. This in turn meant giving Mr Campbell — a political appointee — the ability to give orders to civil servants.

But this meant challenging the traditional, and highly cherished political neutrality of the British civil service. There was only one way that the incoming prime minister could secure these new powers for Campbell.

This was by forcing the Queen to authorise special ‘orders in council’, which over- rode constitutional norms. The consequences of this breach in procedure were grave. The integrity of the Downing Street official bureaucracy was compromised.

Five years later, Mr Campbell had the power and authority to use the government machine as a propaganda tool to sell the case for war with Iraq. The world still lives with the dreadful consequences of that disgraceful episode.

This brings me to yet another abuse of the Privy Council: the way it is used as a forum for the exchange of information concerning national security.

All opposition leaders have automatically become members of the Privy Council, giving them the right to put the title ‘Right Honourable’ before their name.

This means they can be briefed by Whitehall on ‘Privy Council terms’ during international crises. In theory, this enables opposition politicians to be better informed. In practice, though, they can be fatally compromised.

The classic case concerns the Iraq war, when Tory leader Iain Duncan Smith, as a Privy Council member, was briefed on secret intelligence.

As we all now know, the material shown to Mr Duncan Smith was based on fabricated claims about the existence of weapons of mass destruction that were not justified by the facts.

It would have been better for Britain (and the world) if Iain Duncan Smith had never taken up the offer of these special Privy Council briefings and adopted an independent position.

Indeed, apart from avoiding an international catastrophe, if the Tories had opposed Blair over Iraq, they could, possibly, have won the subsequent General Election.

Undoubtedly, there is a lesson here for Jeremy Corbyn as he ponders whether or not to follow convention and become a Privy Councillor.

Corbyn has devoted his life to campaigning against political stitch-ups and official secrecy. He should refuse to join. 

If he took such a stance, he would be vilified and mocked by the Blairite wing of the Labour Party — but let’s not forget that the crimes committed by the British state under Tony Blair have all been hushed up with the complicity of Privy Councillors.

More troubling than the Privy Council’s use as a vehicle for patronage is its exploitation by politicians as a weapon to suppress the truth.

As David Rogers has shown in his wonderful new book about the Privy Council, it was only in the Sixties that its role as censor of the theatre was abolished.

The Privy Council also helped to provide the authority for so-called D Notices (Defence Advisory Notices), which prohibit newspapers from publishing sensitive military information.

In theory, these D Notices were justified in the name of protecting national security. In practice, they were used just as often to save the Government of the day from political embarrassment.

This tradition of using the Privy Council to silence the Press is still very much alive. Next month, it will unveil a new Royal Charter to supervise the regulation of British newspapers.

This means, effectively, that Britain’s boisterous and unruly newspapers are being placed under state control — thus ending 300 years of Press freedom.

As a brilliant and penetrating article by the respected journalist Nick Cohen in this week’s Spectator magazine demonstrates, this Royal Charter has the potential to eradicate investigative reporting in Britain.

For the first time, judges will be able to impose exemplary damages against newspapers, most of which can barely afford to fight legal actions anyway.

Even more insidiously, judges will be able to order a newspaper to pay any claimant’s costs — even if he or she loses their claim.

Moreover, I am convinced that the MPs’ expenses scandal would never have come to light had this Royal Charter been in place, for no newspaper could have afforded the legal costs if all the MPs affected had gone to court.

Under the new system, the rich and powerful will be able to claim back protections they have not enjoyed for three centuries.

The Privy Council’s involvement in this disreputable attack on the Press should come as no surprise. It lies at the heart of the British culture of secrecy. It is accountable neither to public nor Parliament.

There is no conceivable justification for the continuing existence of this morally bankrupt body, which has been complicit in many of the worst crimes the British state has committed since World War II.