Like the Hydra of Greek myth, the British state has countless heads whose purposes and powers are unified at root. Some wield power directly; others, sometimes known as ‘arms-length organisations’, act on behalf of the ruling class in less visible ways.

The bourgeois state reaches into all aspects of life; it constantly develops its forms and methods; it responds ruthlessly to serious challenge, however small. In a period like this one, where a huge transfer of wealth away from the working class to an ever-smaller section of the ruling class is well underway and a major war is being prepared, the state has to work harder to stifle opposition.

The more visible ‘heads’ of the British state – the armed forces, the police force, the monarchy, Parliament – are not the subject of this series of short articles, which will instead look at some of the smaller bodies performing essential functions for the state, often going unnoticed.

The UK’s famously unwritten constitution means the country is effectively governed by the Privy Council and its executive committee the Cabinet, composed of what John McLean called ‘the Old Gang’ in his Open Letter to Lenin (1921). Its longevity is testament to the continuities of class rule in this country.

The Council and its Judicial Committee wield their powers without scrutiny or accountability, amounting to a sort of ‘black hole’ at the centre of things, as Dr Paul Scott of Glasgow University’s School of Law puts it. They are instrumental not only in managing the Overseas Territories, the significant residue of empire, but also in ensuring the main levers of state power remain outside Parliament’s control.

The almost complete continuity of the Privy Council since the 13th century is remarkable. In constitutional terms it has been described as the seed from which much, if not all, else grew. It developed by degrees out of the curia regis, the King’s Council, in the course of the Plantagenet period and emerged as a fully separate body in the 14th century. Its earliest written records date from 1386. Constitutional theorist A .V. Dicey wrote in 1887,

“The three centuries intervening between the Norman Conquest and the reign of Richard II (1066-1376), are the period during which English institutions assumed a form from which they have never essentially varied. At the end of this period, there is found in existence a Parliament of two Houses, distinct Law Courts, and a Council, with peculiar powers, and distinguishable both from the Law Courts and from the Parliament…”

The one interruption to its existence was in the 17th century during the Commonwealth. Widely seen as an instrument of despotic rule, the Privy Council was abolished in 1641 by the Long Parliament and replaced by an elected council, which served until the Restoration. Charles II reinstated the Privy Council, shorn of its enforcement wing the Star Chamber, and greatly expanded its numbers. At the same time he reduced its workings to an inner circle, a ‘cabinet’ of ministers known in his reign as the Cabal.

Members of the Privy Council are still appointed by the King or Queen, on the advice of the Prime Minister, which gives him/her considerable power of patronage. Membership is for life and there are no limits on numbers. There were 19 members in 1404; there were 747 in 2025. Current membership is listed publicly and consists largely of politicians current and former, appointed peers and members of the hereditary aristocracy, bishops and archbishops, senior civil servants and judges, and some politicians from Commonwealth countries. Members of the armed forces are conspicuous by their absence.

A.V. Dicey’s description of the actual powers of the Council as ‘peculiar’, meaning ‘special’ or ‘particular’ to it, falls short of defining what they were. They have always been an expression of royal authority in one way or another, but the extent of royal authority has not been a constant. In earlier centuries it fluctuated with the changing balance of power between monarch and different factions of the feudal aristocracy, who in certain periods captured more of government and influenced the composition of the Council in their favour. The Council had as much power as it could take.

The Council had and still has no written constitutional powers set out in law.

The contemporary Privy Council acts in two ways: through statutory powers which are derived from Parliament, covering matters like coinage and university charters; and by royal prerogative using what are called Orders in Council. These Orders in Council, defined as deriving their force from the Crown, are made without reference to Parliament and have the force of law. In the words of a 1932 report on cabinet ministers’ powers, the prerogative powers are “what is left of the original sovereign power of the Crown to legislate without the authority of the Houses of Parliament.”

In his ‘History of the Privy Council’ (1928), Almeric Fitzroy, one of the few historians of the Privy Council and its Clerk for 25 years, describes the Orders in Council and their function clearly, “....with the growing difficulty in getting Bills through Parliament they have appealed both to puzzled draftsmen and harassed Ministers as a convenient mode of forestalling or fending off obstruction…” He adds that “…the formula ‘it shall be lawful for His Majesty by Order’ to do this or the other has become a very useful expedient…”. Democratic process and accountability are defined as obstructions.

The use of the Orders in Council can be extended to cover “civil convulsion or the outbreak of war” according to Fitzroy, who ascribes the readiness of the British state at the onset of World War I to the Privy Council acting as the “pivotal point of the collective machine.” Churchill relied on the Privy Council throughout the Second World War, when it played a crucial role in managing and directing the war economy. He kept the extended powers for some years after the end of the war.

The Council is not only active in time of war, it is instrumental in war being declared (rare) or armed forces being deployed abroad (frequent). According the Command Paper War Powers & Treaties: Limiting Executive Powers (2007), “The constitutional position of the UK armed forces is that their government and command are vested in Her Majesty… …For overseas operations, the political decision to deploy the armed forces rests with the Prime Minister or Cabinet through their exercise of the Royal Prerogative.”

This means that war can be declared or troops deployed abroad simply by Order in Council. The Paper goes on, “…the prerogative powers could allow the government to send armed forces into armed conflict abroad without any Parliamentary discussion or debate, or without Parliamentary consent.” It adds, “In practice it is inconceivable that any government could make such an important decision without the support of the House of Commons…”

The authors had short memories. Just four years before the writing of this Paper, Blair had sent troops to Iraq using an Order in Council.

Command of the armed forces is not the only power exercised via the Privy Council. Parliament can be prorogued or suspended by an Order in Council. While this happens annually by custom to bring a session to a close, there is nothing in law to prevent it happening at other times should the Privy Council so decide. Interestingly, when the Johnson government prorogued parliament in August 2019 (with Rees-Mogg in the role of Lord President of the Council) in order to prevent parliamentary scrutiny of the proposed no-deal Brexit bill, the Order was quashed by a Supreme Court judgement citing precedents from 1611 and 1765. This might seem to suggest there is a body with powers higher than an Order in Council, but in fact this was a case of one committee of the Privy Council, the Cabinet, effectively being overruled by another. Judges of the Supreme Court are also judges of the Judicial Committee of the Privy Council.

The royal prerogative can also be used to declare a state of emergency at any time the government decides. During the General Strike of 1926, even as the government was in negotiations with the Trade Unions, the Privy Council was “drawing up the necessary Emergency proclamations for the inevitable conflict,” as Rajani Palme Dutt noted in his pamphlet ‘The Meaning of the General Strike’. Between 1920 and 1974 there were twelve such proclamations, all relating to industrial action, and in 1984 the Thatcher government banned union membership at GCHQ by an Order in Council.

Use of the royal prerogative reveals where real power lies in the British state.

The Privy Council has always been the main instrument of the state in the management of empire.

The bloody subjugation of Ireland in the Tudor period was conducted through the Privy Council, when the Lord Deputy of Ireland acted for the Crown through the Council, reporting directly to it and requesting soldiers and supplies from it. The appointment of the Lord Deputy was made on the advice of the Council.

Of twelve Committees of the Council created in the early 17th century, the fact that The State of Ireland heads the list shows the importance accorded to the safeguarding and management of the plantations established through the preceding century. As part of the process of organised settlement and colonial extraction, the Council also concerned itself with the anglicisation of the sons of Irish noblemen, as Fitzroy notes with approval: “The practice of sending the sons of Irish noblemen and leading gentlemen to England for some part of their early and impressionable years was extensively followed, with what seems to have been good results.” The idea was to have the Irish “nobilitie as the principall gentry trayned up in this realme to civilitie and religion,” as one Privy Council letter from the period shows.

In North America, throughout the 18th century the Privy Council, Fitzroy tells us, “continued to guide and stimulate colonial expansion and development with all the energy and resources at its disposal, until the blunders of George III and his advisers precipitated the fatal conflict with the American settlements.” This account presents the Council as directing and reining in not only the breakaway ambitions of individuals and of colonial politicians establishing potentially threatening bases of power, but also the Crown itself. Its contemporary purpose could be construed in the same way: to prevent fracturing within the state machine and to strengthen the coalitions that unify the centre.

Relations between the Council and the East India Company were difficult from the start and continued to dramatise the struggle for control of the profits of colonial expansion. The Council had opposed the formation of the East India Company at the end of the 16th century, blocking royal assent to the petition of London merchants aiming to challenge Spanish domination of the trade routes and extraction of resources. But as the spoils became more and more attractive to the Crown, the Council relented and the charter was granted a year or so later. It was afterwards extended every 20 years, providing the Crown and Council with some measure of influence over a company with fabulous wealth and its own armies; the Company was constrained, for example, to disclose its accounts from time to time. It was not until 1862, however, that the British state, acting via the Council, secured full control of the courts in India; until that point there had been a parallel system of state and company courts.

The first appeals to the judges of the Privy Council from Indian rulers of territories being marauded by the East India Company appear towards the end of 17th century. The role of the British government/Privy Council in relation to the Company is analysed in detail by Marx in his essay of 1853: The East India Company - its History and Results.

In 1922, five years after Balfour’s Declaration in 1917 promising a Jewish state in Palestine, as part of the formalisation of the British Mandate a constitution for Palestine was put in place by an Order in Council under Balfour’s leadership. In his history of the Privy Council, Fitzroy, who was personally present at the signing of a constitution which had been immediately rejected by the leadership of the Palestine national movement, describes with colonial complacency the writing of it, “The difficulty of composing within one instrument the claims of jealous races and contending creeds was met with great wisdom and adroitness, and the adjustment of rival pretensions is conspicuous witness to the prudent statesmanship that has watched and tended the growth of the new State.”

Balfour made a second, less well-known Declaration in 1926 as Lord President of the Privy Council, announcing what was termed a ‘co-equal’ relationship between the UK and its Dominions in an attempt to shroud real power relations in a mist of small concessions and head off support for independence movements.

Britain established and then governed its early empire through the Privy Council. Since 1833 this role has been assigned to the Judicial Committee, which now governs what remains of empire in the form of the Overseas Territories:

Anguilla; Bermuda; the British Antarctic Territory; the British Indian Ocean Territory (BIOT); British Virgin Islands; Cayman Islands; Falkland Islands; Gibraltar; Montserrat; Pitcairn Islands; St Helena; Ascension and Tristan da Cunha; Turks and Caicos Islands; and the Sovereign Base Areas

(SBAs) of Akrotiri and Dhekelia on the island of Cyprus.

These territories have no representation in Parliament, which means there is no obligation for the UK government to act on behalf of any of the people living in them, as was abundantly clear when the Chagos islanders were summarily displaced by an Order in Council to facilitate the development of the joint US-UK military facility on Diego Garcia.

Policy for the Overseas Territories is made and their laws enforced by the Privy Council which acts, according to Dr Paul Scott, as a firewall between the domestic and imperial constitutions, preserving the latter from the control and scrutiny of the former (6). In this way it prevents the British people from seeing and understanding what goes on in their name, and guarantees the safety of the vast sums of money banked in many of the territories.

These funds are not just deposited there by individuals looking to evade taxation and park assets. The Cayman Islands are currently home to 75% of the world’s offshore hedge funds, which are themselves the largest holders of US debt (7). Investment funds registered in the Caymans hold $8 trillion in assets, while over 400,000 companies are listed in the tiny Virgin Islands.

The Caymans are just one element in a network of havens. According to American think tank Global Financial Integrity, ‘The UK’s offshore tax havens are estimated to facilitate nearly 40% of the tax revenue losses suffered annually by countries around the world.” More than a third of the world’s money laundering is managed through one or other of the UK territories under the benign eye of the Judicial Committee. Periodic exposés and leaks like the Panama Papers ruffle the surface of this system, leading to debates and occasionally new laws, but undertakings to clean up the networks soon founder and little meaningful action has been taken. In the view of Paul Mitchell, writing in the Oxford Journal of Legal Studies in 2016, the Judicial Committee’s modus operandi has been to create ‘a network of ambiguities and equivocations that it [takes] great care not to resolve’. In concert with financial institutions in the City of London which design the offshore structures, it enables the City to compete with Wall Street and has reinforced the UK’s global influence by refusing to submit itself to accountable legal consistency and has instead followed a snaking path of opportunist, arbitrary rulings.

Judge of the Privy Council, Lord Haldane’s description of the Judicial Committee’s role as ‘assisting in holding the Empire together’ is succinct and accurate. Dr Paul Scott goes further. In his view: “…any attempt to remove the Privy Council from our constitutional order, or to turn its relative formality into absolute formality by depriving it of all substantive powers, is highly unlikely. To do so would require the UK to grapple not only with the considerable constitutional legacy of empire, but also with its ongoing reality.” That is, it holds everything together.

Operating what amounts to a shadow constitution via royal prerogative and its Judicial Committee, the Privy Council is careful to remain in those shadows, “You cannot learn much about it from documents… Its constitution is mainly unwritten, and its conventions are unwritten; so that unless you have lived in it and in the atmosphere, you do not know what happens there.” Lord Haldane addressing the Law Society in 1921

The shyness extends to its online presence where recent Orders in Council are not easy to find and when accessed via The National Archive exist patchily and then only by title and not in full text. There is the appearance only of compliance with freedom of information. Trying to find Orders passed in the year 2009-10 when Peter Mandelson was Lord President of the Privy Council proved impossible. Its own website is courteously unhelpful.

The Privy Council’s curated public face is that of an exclusive club, with coveted membership conferred on deserving politicians and civil servants at the end of their careers. In a masterly piece of misdirection, a 2003 BBC report, possibly timed to coincide with Blair’s Privy Council briefing of opposition leaders on his mendacious Iraq ‘dossier’, described membership of the Council as ‘a prestigious must’ and its function as largely symbolic.

Nothing could be further from the truth.