As I said in my last post, the Press Board of Finance’s grounds for judicial review make clear that it is seeking an injunction – “interim relief” – to stop the government getting its preferred cross-party Royal Charter granted by the Queen in Privy Council tomorrow. PressBoF will appear before Lord Justice Richards and Mr Justice Sales (two judges who were both once First Treasury Counsel, and appeared on the government side in just such high-profile cases as this) at the High Court tomorrow at 10.30.
The government could have offered an undertaking to postpone presentation of the Charter – though there’s no legal reason why it had to, and if it had, the press would have achieved its main immediate aim: further delay.
While I think PressBoF’s case for an interim injunction is initially attractive, it may not necessarily succeed.
It’s important to realise that PressBoF is technically challenging two things, not one: it’s challenging –
- ministers’ recommendation to the Queen to reject the press’s draft Charter, and
- the Queen’s Order in Council (as PressBoF calls it) giving effect to that recommendation.
The reason it’s challenging both is that there’s a possible legal argument about whether Her Majesty’s order (if it is an order) can be challenged in law; whether it’s amenable to judicial review, as a lawyer might put it. It seems that the government’s lawyers have made that very argument in correspondence. I think PressBoF’s barristers Richard Gordon QC and Sarah Love are probably right (see paras. 51–54 of PressBoF’s facts and grounds) that the order can be challenged in law because of the House of Lords ruling in Bancoult in 2008.
But given the technical argument, it makes sense for PressBoF to challenge ministers’ recommendation, too. PressBoF wants the recommendation declared unlawful, and the order (as PressBoF calls it) quashed.
And we also need to remember that the Queen is due to make an order tomorrow, presumably to grant the cross-party Royal Charter on ministers’ recommendation. It’s this that PressBoF wants delayed on an interim basis.
Against that background, the argument for an interim injunction runs as follows (paragraphs 107-9 of PressBoF’s statement of facts and grounds):
Pressbof disagrees with the Defendants as to whether an Order in Council is amenable to judicial review. However, if the Court were to find the Defendants’ view to be correct but the Government Charter were to be granted (whether at the meeting of 30 October or on another occasion), there would obviously be a risk of the Court finding the Recommendation to be unlawful but Pressbof then being confronted with a non-justiciable Order in Council granting the Government Charter.
In other words, if the Defendants are correct as to the justiciability of Orders in Council of this nature, there is a risk that this claim may succeed in substance but turn out to have been futile. Were that to be the case, two decisions of considerable constitutional significance (namely, to reject the Press Charter and grant the Government Charter) would have been taken following an unlawful recommendation but there would be no recourse, whether for the press industry or for the wider public.
Accordingly, to protect against the risk of this occurring, Pressbof seeks interim relief in this claim against the Government Charter being considered and/or approved, whether at the meeting of 30 October 2013 or otherwise, pending the conclusion of the claim.
As I say, on the face of it this seems reasonableness itself. If a Royal Charter is granted tomorrow, it’ll be granted – and only amendable by two-thirds majorities in each House of Parliament. So even if PressBoF succeed in establishing that rejecting its draft Charter was unlawful, a court ruling to that effect will do it little good. Any further submissions would achieve nothing even they convinced ministers, if Ed Miliband was unmoved. At first blush, then, it seems obvious that judges may well be sympathetic to granting interim relief in order to preserve the status quo for the time being.
But there’s something a bit odd about this. PressBoF is not at the moment making any claim that the cross-party Charter is itself unlawful, or that granting or recommending it would be unlawful. It could do – it could now be seeking a prohibiting order stopping the grant of the cross-party Charter on the basis that it’s unlawful in itself (on human rights grounds for example) or that procuring its grant would be unlawful in a collateral sense because of the underlying unlawfulness of rejecting the press’s own Charter. But PressBoF doesn’t say that, as things stand. Perhaps that’s because all its stakeholders cannot agree on the point. But for whatever reason, PressBoF does not make the argument.
Isn’t there something funny about asking the courts to restrain ministers from doing something you do not even claim is unlawful? I expect tomorrow’s argument to be seriously interesting, and will be surprised if the arguments do not include discussion of this point.
By the way, I keep doubting whether the “order” PressBoF is challenging really is an order, really because looking at the official record Her Majesty doesn’t appear to have ordered anything. To be fair, the Privy Council’s official minute describes it as an “order”. Still, there must be doubt that the Queen orders anything when she does not, as here, grant a Charter that’s been asked for. It seems to me that she has exercised no prerogative power at all.