Just before Lord Justice Leveson reported in November, I wrote in support of statutory press regulation:
Only legislation can require newspapers to submit even to their own enforcement of their own code …
What statute – and no other arrangement – can do is set up a genuinely independent regulator: independent not only of the state but of the press. I won’t go into the detail of what model I’d like to see. The detail matters less than the principle.
But I also asked for statutory liberation, seeing Leveson as an opportunity to free the press from the true threat to its freedom – libel:
The way to end the libel scandal, and the best way to improve the way we deal with privacy cases, is to put these matters in the hands of the expert regulator or tribunal instead of the courts. It should be the exclusive first-instance regulator of press intrusion on reputation and privacy. The only appeal to the courts should be on the basis that the tribunal has acted unlawfully.
Finally, while I thought regulation should be compulsory for the print press that had made it necessary, I wanted bloggers included in any new system on a voluntary basis:
I’d want to learn from the standards applied by the regulator, and to be shielded from the threat of litigation. If other independent bloggers wanted to remain outside and face the old-fashioned chill winds of libel and privacy law, it should be up to them.
So, how did the Leveson report, and how does the Royal Charter deal politicians have cooked up, compare with what I wanted then?
Leveson was subtler than my wish-list. His proposals mirrored my thoughts about linking regulation to a simplified libel and privacy process, by requiring a press self-regulator to provide arbitration. And he proposed presenting publishers with a choice about whether to stick with old-style law, or to buy into the regulator. He was subtler than me in extending that choice to all the press rather than just to bloggers. Subtler, too, in wanting to incentivise the press to choose regulation, instead of barring access to courts – with statutory underpinning for those incentives as an essential part of the plan. He thought of a clever way to keep the system honest, with a recognition body to police regulation. Leveson impressed me.
What’s in the draft Royal Charter plus the two pieces of legislation needed to back it – currently clause 92 of the Enterprise and Regulatory Reform Bill, and what I think must now be new clauses 30 to 38 of the Crime and Courts Bill, also seems likely to deliver most of the goods. The Charter means the recognition body will only be able to recognise a press self-regulator if it offers arbitration – see Schedule 3, paragraph 22 to the draft Charter – and the Crime and Courts Bill provisions offer self-regulating publishers Leveson’s incentives to join self-regulation, and some of the protection I wanted from libel and privacy claims.
The use of the Royal Charter mechanism is laughable, and wrong. The only reason it’s been resorted to is the Prime Minister’s feeling that any legislation risked giving politicians control. He must have read something like that in the papers. Few seemed to notice that his alternative, a Royal Charter, would be drafted and decided on solely by ministers, in private, without the public scrutiny Parliament would give a bill. Now, even the Prime Minister has realised that Leveson was right, and some legislation is necessary after all – so you wonder why it’s still proposed that the recognition body be established by Charter. It saves some political face for the PM, I suppose.
But the result is a mess. Instead of a Royal Charter drafted entirely by government ministers and two bits of statute hurriedly inserted part way through the passage of an enterprise bill and a courts bill – provisions which I’m sure will need government amendments – the system should have been fully debated and scrutinised by Parliament in a self-contained Press Self-Regulation Bill.
Some might argue that the draft Charter is more difficult for politicians to interfere with than statute, because it’s “entrenched”. Article 9.2
Before any proposal (made by any person) to add to, supplement, vary or omit (in whole or in part) a provision of this Charter (“proposed change”) can take effect a draft of the proposed change must have been laid before Parliament, and approved by a resolution of each House. For this purpose “approved” means that at least two thirds of the members of the House in question who vote on the motion do so in support of it
will be backed by clause 92 of the Enterprise and Regulatory Reform Bill,
Where a body is established by Royal Charter after 1 March 2013 with functions relating to the carrying on of an industry, no recommendation may be made to Her Majesty in Council to amend the body’s Charter or dissolve the body unless any requirements included in the Charter on the date it is granted for Parliament to approve the amendment or dissolution have been met.
That looks like a sort of entrenchment. But as Dr Mark Elliot explains at Public Law for Everyone, it’s not quite what it seems. A majority in Parliament could repeal clause 92 by a simple majority, and after that, government could unilaterally amend the Royal Charter. True, this’d be politically difficult. But then, amending legislation about the press would be politically difficult, too. The Royal Charter doesn’t make the difference it’s supposed to.
In fact, clause 92 may even transfer power from Parliament to government, as Jacob Rowbottom explains at the UK Constitutional Law Group. It refers not simply to the press Royal Charter but to any new Royal Charter “with functions relating to the carrying on of an industry”. The reason for this, I presume, is so that it could be included in a public bill, rather than having to be introduced separately as a private bill, or risk making the Enterprise and Regulatory Reform Bill “hybrid”. That might have caused a real procedural mess. But clause 92 being drafted as it is, it enables ministers unilaterally and without consultation to create industry regulators by Royal Charter which, at least on their face, can be made safe from change by Labour even if it wins a landslide majority at the next election. After all, what’s to stop a 100% Parliamentary majority from being required for amendment, in the terms of a new Royal Charter? This may sound silly, and could as I’ve explained be got round by repeal of clause 92. But it works no more or less well in Jacob Rowbottom’s scenario than it does in this real-life Royal Charter deal. The scenario has the virtue of illustrating why the entrenchment trick is constitutionally dubious.
In spite of all this, I back the deal. It’s not as strong as I would have liked, and its form is bad. Leveson came up with a subtle compromise that I think should have been acceptable all round. It wasn’t, of course. And now this draft Royal Charter scheme is a further and shoddier compromise, which again should be acceptable. It won’t be, of course. There’s a section of the press that may never accept anything, in any form – which is why I wouldn’t bother negotiating with it if I had power. But this deal is the only game in town, and it offers something like the liberation I asked for.
The detail does concern me. In particular, I worry that the deal as currently drafted may not offer bloggers what it offers the print press and major websites. But more of that in another post.
Does not Article 9(1) of the draft Charter itself limit the power (of the Queen in Council i.e. the Government) to amend the Charter only if the requirements of Article 9(2) are met? If that is right what does clause 92 add? Or does the Queen in Council have some sort of inherent, prerogative power to amend/dissolve Royal Charters notwithstanding the terms/requirements of the Charters themselves?
Good question. But just as Parliament may be able to repeal by a simple majority statutory provisions that require an enhanced majority for amendment (I hope we never have to face this constitutional nightmare) there must I think be an argument that the Queen can, on the advice of the Privy Council, simply amend article 9.2.
So yes, prerogative powers, in a way that matches Parliamentary sovereignty, may be immune from this sort of attempt to tie them down.
I guess the government must have thought there was something in this argument – hence clause 92.