The Privy Council and the constitutional legacies of empire

Abstract

The British Empire is treated as a historical phenomenon, but it enjoys a residual existence in the form of the various Overseas Territories of the UK. This paper considers the constitutional position of those territories. It shows that they are mostly excluded from what is called here the ‘domestic’ constitution, having no representation in its institutions and, when acknowledged, if at all, conceived of as foreign entities. Instead, the Overseas Territories are governed mostly via a distinct (post-)imperial constitution, primarily via the mechanism of the Privy Council. That institution, which does little work within the domestic constitution, creates a formal divide between the domestic and the imperial. This formal divide both masks the substantive continuities between the domestic and the imperial constitutions and facilitates, as regards the Overseas Territories, forms of governance which would not be tolerated in the imperial centre.