Jeremy Corbyn’s apparent failure to be sworn in as a member of the Privy Council when it met last week has generated a level of interest which this archaic and obscure institution has not enjoyed for some time. I have written previously about the nature of the Privy Council, that august body of individuals which pre-dates such modern developments as Parliament, the Cabinet and the office of Prime Minister. Originally created as a group of special advisors to the monarch, the Privy Council today comprises, among others, the most senior politicians in the country and is the body through which the few remaining prerogative powers are exercised.
While elevation to the Privy Council is a formality which usually goes unnoticed for Leaders of the Opposition, Corbyn’s well known republicanism has focused attention because entry to the Privy Council involves swearing an oath of allegiance to the monarch in a somewhat bizarre ceremony in which one kneels before the Queen while kissing her hand, or as Tony Blair observed, ‘brushing her hand with your lips’. Corbyn seems, not unnaturally, reluctant to be involved in this process. While we do not know for certain what exactly he does thinks about it, it would not be unreasonable to assume that, like John Prescott who left the Privy Council, albeit after leaving office, he thinks the whole thing should be abolished.
Labour spokespeople on the other hand, no doubt concerned to avoid more headlines suggesting their leader has snubbed the Queen, have suggested that Corbyn will become a member in due course and his absence from last week’s meeting is explained as little more than an unfortunate diary clash.
However, does Corbyn really need to join the Privy Council?
There are some who clearly think that Corbyn should join as a matter of principle. That if he is to be considered as a ‘serious politician’ he must abide by the conventions of the constitution and demonstrate due deference to the monarch. This is clearly a moot point, but it is worth noting that this is not a requirement of all MPs, unlike for example swearing the oath at the beginning of each new Parliament. Indeed, it is not a requirement at all, individuals are invited to join the Privy Council, and as with all honorary positions they may respectfully decline. Moreover, judging by the accounts in numerous Ministerial memoirs, many, although by no means all, of those who have joined consider the whole process somewhat irksome.
There have also been a number of claims for the practical benefits of Privy Council membership. These may not, however, be as significant as they seem.
Shortly after Corbyn became Labour leader an erroneous front page story in The Sun suggested that Corbyn would hypocritically kiss the Queen’s hand in order to enable Labour to gain access to £6.2m in ‘short money’, state funding which is offered to Opposition parties. The story had barely hit the newsstands before a succession of constitutional experts lined up to point out that the provision of ‘short money’ was not conditional upon Privy Council membership, and the story appeared to be little more than a clumsy attempt to smear Corbyn.
A more defensible argument is that Corbyn will need to join the Privy Council in order to gain access to secret intelligence briefings which the Government occasionally shares with Opposition leaders. This has been repeated in a number of media outlets, most notably The Daily Telegraph which last week observed that membership ‘gives him the right to receive government intelligence briefings.’
Unlike the short money story there is at least some truth in this. Successive governments have found that Privy Council membership may be a useful device to enable the distribution of sensitive material beyond those in Government, through the practice of sharing information on what has become known as ‘Privy Council terms.’ This has become particularly important feature of relations between Government and Opposition. It is through this mechanism that Leaders of the Opposition have occasionally been apprised of concerns that one of their MPs might be a security risk and should not be considered for a position which would give them access to sensitive information. It may also be used to share sensitive information with Opposition politicians at times of national emergency or conflict.
In his book, The Prime Minister, the office and its holders since 1945, the historian Peter Hennessy has provided a list of issues since 1945 on which information has been shared with Opposition leaders on Privy Council terms including the Middle East in the 1950s, the Cuban missile crisis, the Profumo affair, the future of the nuclear deterrent and the conflict in Northern Ireland. More recently the Prime Minister, Tony Blair, shared intelligence on Iraqi weapons of mass destruction with Opposition leaders on Privy Council terms, as did David Cameron in relation to events in Syria in 2013.
However, Privy Council membership is not the only, or perhaps even the most effective means of sharing intelligence with opposition MPs. In most cases when politicians are afforded access to secret information the intelligence agencies rely on something more robust, and legally binding, than the Privy Council oath. Government ministers and also members of the Parliamentary Intelligence and Security Committee (which includes opposition MPs) are all notified under the Official Secrets Act. While Corbyn may, for other reasons, be reluctant to sign the OSA it would at least provide a more accountable mechanism and quite possibly one with which the intelligence agencies would be more comfortable. Particularly when compared to an oath sworn before God and the Queen by someone who doesn’t believe in either.
It is also important to bear in mind that Privy Council membership does not come with a right to access secret intelligence material, as suggested in the Telegraph. Privy Council membership is awarded for life and extends to over 600 individuals including current and retired politicians as well as prominent individuals from fields including the civil service, academia and journalism. While all have taken the Privy Council oath, providing them all with a right to access secret intelligence material would represent a worrying breach of security. Thus, when Governments share sensitive information with the Opposition, it is not only rare, it is also on their own terms. When they choose to do so and how is entirely in the hands of the Government.
It is wrong then to assume that Privy Council membership for Opposition politicians is a privilege which does not also benefit the Government. For Opposition leaders being shown intelligence information on Privy Council terms can be a mixed blessing. In interviews for our research on parliament and the intelligence services several former Ministers observed that the binding nature of the Privy Council oath has the added advantage for governments of preventing Opposition members from making political capital out of what they have been told on Privy Council terms. In certain circumstances they observe, if the Opposition wants to more effectively challenge the Government, then it may better to decline offers to be shown secret information in this way.
It is then a well-established convention that Leaders of the Opposition become Privy Council members, but it is not an obligation, and it can be a double-edged sword. If Corbyn were to choose not to join it would not create a constitutional crisis. Moreover, far from putting Corbyn on the back-foot it would pose a challenge to the government who would need to decide whether and how to share sensitive information with the Opposition.