The Meeting of Parliament Act 1797 and the Prorogation Act 1867 both grant the monarch powers "by and with the advice of the Privy Council". What is the process by which the Privy Council decides what advice to give? Is there a voting system by which councillors can decide whether or not to make a certain advisement?
I have heard that practically such advice is decided by the Prime Minister, though I am interested in the formal process behind this.
I have heard that practically such advice is decided by the Prime Minister, though I am interested in the formal process behind this.
Such advice is decided by the Government. The idea that the Council itself presents advice is one of those quaint little fictions that underpins the UK's constitution. There's no vote of the Council or anything like that; the full Council is 701 strong and sits on very few (purely ceremonial) occasions. The Government's internal process for deciding policy varies from Prime Minister to Prime Minister. Some favour a more presidential style, others a more collaborative effort in Cabinet.
Once Government has decided the advice it is conveyed to the monarch by at least 3 (the number required for a meeting of the Privy Council to be quorate) Privy Councillors. Their reporting the advice to the monarch is the meeting of the Privy Council from which "Orders in Council" derive. For example, here's the Order in Council ordering the Prorogation that was intended to take place in early September. The actual order is on Page 4, and reads:
It is this day ordered by Her Majesty in Council that the Parliament be prorogued on a day no earlier than Monday the 9th day of September and no later than Thursday the 12th day of September 2019 to Monday the 14th day of October 2019, to be then holden for the despatch of divers urgent and important affairs, and that the Right Honourable the Lord High Chancellor of Great Britain do cause a Commission to be prepared and issued in the usual manner for proroguing the Parliament accordingly
n.b. "divers" is an older spelling of "diverse".
So; government decides and sends not less than 3 Ministers, all of whom are Privy Councillors, to the monarch. They report the advice to the monarch, and that meeting is the Council from which Orders in Council are issued.
The Privy Council's website does a decent job of explaining this: https://privycouncil.independent.gov.uk/orders/
One might wonder what would happen if some Privy Councillors who are not ministers went to the monarch and issued advice. For example, what if the Opposition (some of whom are Privy Councillors) decided to advise her to issue an Order in Council. The answer is, pretty obviously, the Palace would call up HMG who'd send some heavies to turf them out. How this would be justified legalistically is a question for law.se, but the Political response is that constitutional convention is that only those Privy Councillors whom are also Government ministers give advice.
