That’s the real reason the US doesn’t join. Everyone would sing the wrong words to that song…
Isn’t it true that the Queen in her role as head of state can issue pardons for convicted criminals? If I’m not mistaken, some Commonwealth countries still have the death penalty. So this could have the potential to become a hot topic.
Apparently court cases in Trinidad can be appealed to a privy council in Britain, death penalty cases included. Also much smaller issues including apparently civil cases, it is controversial.
http://www.trinidadexpress.com/news/Privy_Council_rules_in_favour__of_prisons_officer-166616646.html
She will always follow the advice of Her ministers in such cases; she wouldn’t exercise the power independently. Therefore any controversial decisions will be the responsibility of those who advised Her.
If you mean by “ministers” members of the UK cabinet, I’m not sure that’s right. In respect of the Commonwealth realms and crown colonies, she reigns not as King-in-Parliament but as King-in-Council. She is therefore advised by members of her Privy Council (some of whom may indeed be ministers).
I was always under the impression that in the UK the Prerogative of Mercy was subject to the advice of the Home Secretary…
But only in the UK.
Well that’s true 
Two things:
- The difference between the UK and the Commonwealth Realms is not a matter of the difference between Queen in Parliament and Queen in Council. She has both a Parliament (or equivalent) and a Privy Council for both the UK and for each Commonwealth Realm. And she cannot be advised on a Commonwealth Realm’s business by her UK parliament or council. That’s why the Commonwealth Realms are sovereign.
For example, in Canada, she is one of the three components of the Parliament, along with the Senate and House of Commons. She also has a Queen’s Privy Council for Canada.
- In practice, certainly in Canada, the Privy Council and the Cabinet are indistinguishable. The Privy Council theoretically includes a large number of other people (e.g. former cabinet ministers, provincial premiers, and other people such as party leaders who may be named to it from time to time, especially due to the provisions of the Official Secrets Act, or as an honour), but in practice, it exercises its powers through the action of the Cabinet, with none of the other Privy Councillors getting involved. (The only time the whole Privy Council meets is when assent is requested to royal weddings.)
So anything the Queen in Council (or, in Canada and I presume the other commonwealth realms, the Governor in Council) does anything, what that really means is that it’s a decision that the Cabinet or the relevant cabinet minister made.
The Prerogative of Mercy is not particularly relevant to Canada as we don’t have capital punishment, but we do have other royal prerogatives, and the point is that virtually nothing that “the Queen” does is done, in real life, by herself (let alone the Governor General). It’s either done by the parliament or the cabinet of the relevant realm.
I believe it’s actually the Lord Chancellor (in England and Wales, anyhow) rather than the Home Secretary but yes, the Prerogative of Mercy is only exercised on advice.
Thanks for the correction and further explanation, matt.
I think part of the confusion is that the privy council that acts as a court of final appeal for some Commonwealth Realms is the UK Privy Council. But I am open to correction on that point also.
I doubt its membership would be acceptable to some or, possibly, the majority of members, and membership would hobble U.S. foreign policy.
nitpick The Commonwealth of Nations dropped “British” in 1949, though try telling that to the Toronto Star.
Yes, the Privy Council does act as the final appellate body for some Commonwealth countries. However, even there, it is not the Queen herself that makes the decision, nor the British Cabinet. It is the judges of the Supreme Court of the UK (formerly the Law Lords of the House of Lords) who are appointed to the Privy Council, and sit as the Judicial Committee of the Privy Council.
The appellate function flows from Her Majesty’s customary role as the fountain of justice. It used to be that any British subject in any parts of the Empire or Commonwealth had a right to appeal to the Crown from a decision of the colonial courts. There are still some Commonwealth countries which have retained this function (mainly the smaller Caribbean countries - Canada, Australia, New Zealand and India have abolished it).
Formally, even today the appeals go to Her Majesty, but she, being a good constitutional monarch, immediately refers the appeal to the Judicial Committee for its advice. The Committee sits much like any other appellate body, reads the briefs, hears the oral arguments of counsel, and then renders its decision, in the form of advice to Her Majesty.
Her Majesty then receives the advice, and is further advised by the Prime Minister and Cabinet that she should accept that advice. She of course does so, and an Order-in-Council of the British Privy Council issues in due course, implementing the decision of the Judicial Committee.
So, as a matter of form, yes, the British Privy Council still plays a role in the government of some of the independent Commonwealth countries, but like Her Majesty’s role generally, it is a purely formal one.
For interest’s sake, the last possibilities for appeal of Canadian cases to the Judicial Committee of the Privy Council were abolished in 1949. The Supreme Court of Canada is now the court of last resort for all Canadian courts.
One of the most famous Canadian cases referred to the JCPC is the “Persons Case” in which women were found to be “qualified persons” capable of being appointed to the Senate. (That the JCPC appeal was necessary because the Supreme Court of Canada had ruled against the women bringing the lawsuit is not to that court’s credit.)
That’s so very Stephen Harper.
There’s a solution! We can write new Royalist lyrics to “To Anacreon in Heaven”!
Thank you very much for the comprehensive explanation.
However, are you sure that this bit:
applies in overseas cases? It is surprising that her ministers in the UK should advise (even as a formality) on cases outside the UK; after all she has other prime ministers in her other realms.
One interesting thing I discovered is that cases in Brunei can be referred to the JCPC, but that in this case it reports to the Sultan of Brunei, not to the Queen.