The proposed regulation
The considerable constitutional implications of the proposed regulation of the press by Royal Charter with statutory restraints preventing the Charter’s change and legislation creating different classes of plaintiff in civil cases seems to have passed our politicians by.
The proposal is for the normal ultimate control of a Royal Charter by politicians working through the Privy Council to be circumscribed by a clause in a statute. In addition, further legislation to allow exemplary damages and costs. will be needed. To demonstrate why this raises constitutional difficulties it is necessary to first understand what the proposed system will be and do. That requires a detailed examination of the draft Royal Charter.
The Royal Charter
There have been three draft Royal Charters: the original Tory Charter, the Labour/Libdem Charter and the third and latest which is the draft (published on 18th march) containing the agreed text by all three major party leaders. The 18th March Charter can be found at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/142789/18_March_2013_Royal_Charter_on_self-regulation_of_the_press__for_publication_.pdf. A commentary on and full text of the previous draft Royal Charters produced by the Tories and the combined efforts of the Labour and the LibDems can be found at http://martinbelam.com/2013/royal-charter-diffs/.
The statutory underpinning
The statutory underpinning will be, according to the BBC, a general instruction for all new Royal Charters after a certain date in 2013, viz:
“Early on Monday a deal was struck, under which a clause in the Enterprise and Regulatory Reform Bill would be tabled in the Lords.
This would state that a royal charter cannot be changed unless it meets requirements stated within that charter for amendments.
It does not mention any specific charter, Leveson or the press – but the royal charter on press regulation would itself state that it cannot be amended without a two-thirds majority of Parliament. “(http://www.bbc.co.uk/news/uk-21825823)
This statutory underpinning is intended to give absolute force to these provisions in the 18th March Royal Charter:
“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.
9.3. The Recognition Panel may only propose a change to the terms of this Charter if a resolution has been passed unanimously by all of the Members of the Board, who shall determine the matter at a meeting duly convened for that purpose.
10.1. This Charter, and the Recognition Panel created by it, shall not be dissolved unless information about the proposed dissolution has been presented to Parliament, and that proposal has been 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.”
The power to take or refuse complaints
The 18th March draft Charter gives the proposed press regulator the power to take or refuse complaints as follows:
“11. The Board should have the power to hear and decide on complaints about breach of the standards code by those who subscribe. The Board will need to have the discretion not to look into complaints if they feel that the complaint is without justification, is an attempt to argue a point of opinion rather than a standards code breach, or is simply an attempt to lobby. The Board should have the power (but not necessarily the duty) to hear complaints:
a) from anyone personally and directly affected by the alleged breach of the standards code, or
b) where there is an alleged breach of the code and there is public interest in the Board giving consideration to the complaint from a representative group affected by the alleged breach, or
c) from a third party seeking to ensure accuracy of published information.”
This gives both a very wide range of complainant and much subjective discretionary power to the Regulator.
The power to impose penalties
The penalties and procedures which the Regulator has to punish and enforce its judgements by the 18th March Charter are:
“15. In relation to complaints, where a negotiated outcome between a complainant and a subscriber (pursuant to criterion 10) has failed, the Board should have the power to direct appropriate remedial action for breach of standards and the publication of corrections and apologies. Although remedies are essentially about correcting the record for individuals, the power to direct a correction and an apology must apply equally in relation to:
a. individual standards breaches; and
b. groups of people as defined in criterion 11 where there is no single identifiable individual who has been affected; and
c. matters of fact where there is no single identifiable individual who has been affected.
16. In the event of no agreement between a complainant and a subscriber (pursuant to criterion 10), the power to direct the nature, extent and placement of corrections and apologies should lie with the Board.
17. The Board should not have the power to prevent publication of any material, by anyone, at any time although (in its discretion) it should be able to offer a service of advice to editors of subscribing publications relating to code compliance.
18. The Board, being an independent self-regulatory body, should have authority to examine issues on its own initiative and have sufficient powers to carry out investigations both into suspected serious or systemic breaches of the code and failures to comply with directions of the Board. The investigations process must be simple and credible and those who subscribe must be required to cooperate with any such investigation.
19. The Board should have the power to impose appropriate and proportionate sanctions (including but not limited to financial sanctions up to 1% of turnover attributable to the publication concerned with a maximum of £1,000,000) on any subscriber found to be responsible for serious or systemic breaches of the standards code or governance requirements of the body. The Board should have sufficient powers to require appropriate information from subscribers in order to ascertain the turnover that is attributable to a publication irrespective of any particular accounting arrangements of the publication or subscriber. The sanctions that should be available should include power to require publication of corrections, if the breaches relate to accuracy, or apologies if the breaches relate to other provisions of the code.
19A.The Board should establish a ring-fenced enforcement fund, into which receipts from financial sanctions could be paid, for the purpose of funding investigations.”
These powers are considerable and the fines could cause genuine financial difficulty to lesser players in the press field because fines are on turnover not profit. The risk is severe because of the immensely broad definition of a publisher who is not a broadcaster:
Schedule 4 b) “relevant publisher” means a person (other than a broadcaster) who publishes in the United Kingdom:
i. a newspaper or magazine containing news-related material, or
ii. a website containing news-related material (whether or not related to a newspaper or magazine);
The recklessly broad definition will almost certainly make the system next to unworkable if the Regulator is genuinely to take complaints from both third parties and complaints about everything from a blog run by a private individual to the largest circulation daily. The experience of the Information Commissioner’s Office (ICO) is instructive with the ICO regularly taking one to two years to complete investigations.
The penalties for not being registered with the Regulator
The proposal is that any publisher (as defined by the Royal Charter) who does not sign up with the new regulator will leave themselves open to exemplary damages plus costs if sued successfully in the courts and may be liable for costs even if they successfully defend a suit in certain circumstances.
These penalties are not part of the Royal Charter or the statutory underpinning already described. Consequently further legislation will be required. This will be direct statutory control of the press no matter how much politicians try to fudge the matter. How far such law would be subject to successful legal challenge is debatable because the Human Rights Act contains this:
“Article 10 Freedom of expression.
1Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.” (http://www.legislation.gov.uk/ukpga/1998/42)
The constitutional issues
If the Charter cannot be amended or dissolved with less than a two-thirds majority of both houses of Parliament because a statute has been passed forbidding it, this is an attempt at a de facto superior law, a law moreover, which is binding on future governments. As the two thirds majority would be extremely difficult to achieve, it would in effect sabotage the constitutional principle that no Parliament can bind its successors by passing laws which cannot be repealed. This is even the case with treaties emanating from the EU. All the major British parties have at one time or another maintained that Parliament is sovereign and the treaties and legislation resulting from Britain’s membership of first the European Economic Community and its successor the European Union could be nullified by Parliament’s repeal of laws and repudiation of treaties.
Unless a formal framework for such a superior law is introduced into our Constitution, the present attempt would fail because the restrictions on change or repeal supposedly created by the statutory underpinning could be overcome simply by repealing the entire law in which the statutory restrictions are enshrined. That would apply even if a separate Act was passed dealing solely with restricting changes to the Charter or its abolition. This is so because there could be no such restriction under present circumstances on repealing an entire statute because all statutes are equal and subject to repeal by simple majorities in the two houses of Parliament. In passing it is worth noting that the legislation to make the early calling of general elections difficult suffers from the same insecurity of application because it requires more than a simple majority.
The next problem is the clash between the general rules governing amendments to Royal Charters and the proposed restrictions imposed by statute:
…once incorporated by Royal Charter a body surrenders significant aspects of the control of its internal affairs to the Privy Council. Amendments to Charters can be made only with the agreement of The Queen in Council, and amendments to the body’s by-laws require the approval of the Council (though not normally of Her Majesty). This effectively means a significant degree of Government regulation of the affairs of the body, and the Privy Council will therefore wish to be satisfied that such regulation accords with public policy. (http://privycouncil.independent.gov.uk/royal-charters/chartered-bodies/).
(d) incorporation by Charter is a form of Government regulation as future amendments to the Charter and by-laws of the body require Privy Council (ie Government) approval. There therefore needs to be a convincing case that it would be in the public interest to regulate the body in this way; (http://privycouncil.independent.gov.uk/royal-charters/applying-for-a-royal-charter/)
The Privy Council practices come into direct opposition with the draft Royal Charter where it touches on amendments to or dissolution of the Charter. It is important to understand that if granted the Royal Charter will not be an artefact of Parliament. Technically it will be a Royal artefact although in reality a government artefact. It might be thought that Parliament being sovereign could override the Privy Council procedures, but it is not as simple as that. The Privy Council procedures are separate from Parliament. If Parliament wants them to be subordinate to Parliament that would make Royal Charters in effect artefacts of Parliament in the same way that secondary legislation such as statutory instruments and orders in council are semi-detached artefacts of Parliament.
The third and last difficulty is the fact that the proposed Charter would create a quasi-judicial authority (I think that that would make it unique amongst Royal Charters). That quasi-judicial function would leave it open to legal challenge, both at the level of the Recognition Panel (RP) which appoints the regulator and the regulator itself . Because there is statutory underpinning of both the RP and the regulator and the RP is in receipt of public funds at least in the early years, it might well be that either body could be subject to judicial review because either could be deemed a public body and a regulatory body established by statute (http://www.judiciary.gov.uk/you-and-the-judiciary/judicial-review).
The other objection to the quasi-judicial status created by the proposed regulatory system is the fact that quasi-judicial powers (and very considerable ones) are being granted by a body other than Parliament .
The likely outcome
The proposals are a cynical ploy to prepare the ground for serious interference with the traditional press and the broader internet media because of the breadth of the definition of a publisher. These are proposals which are incompatible with any society that calls itself free or has pretensions to be a democracy because by definition anything may be debated in a democracy.
The intended consequences of the proposals are clearly to manipulate the press and internet media both in instances of actual publication and through the deterrent effect of the possible consequences which publication of a story will bring. Moreover, anyone who believes that this will be the end of political interference with the press and internet publishers is credulous to the point of imbecility. Once state regulation of any degree becomes the status quo it will provide the psychological launching pad for further control. This will be difficult to argue against because the pass on press freedom will already have been sold.
The fact of such an agreement amongst the leadership of all our major parties is profoundly depressing because it means not one of them collectively understands the value of free expression as a cleansing lotion for immoral behaviour, especially that by the powerful and influential. To that is added the contemptible portrayal of the proposed scheme by the major parties as anything but what it is, namely, grubby authoritarianism.
None of that is to say that those abused by the press do not require protection. A statutory right of reply (RoR) would do what was required without any chance of political interference. This is because it is a self-organising process which would involve only the newspaper and the complainant or, where an RoR was refused, the courts to enforce it. The involvement of the courts would not require the courts to make a judgement on what the publication had written or what the subject of their story wanted to say in reply. All the court would be doing is forcing the publication to provide the RoR. The detailed arguments for an RoR can be found at https://livinginamadhouse.wordpress.com/2013/02/25/curing-media-abuse-a-statutory-right-to-reply-is-needed/.
Is all lost? Happily there is some hope. That exists not because there is likely to be any turnabout out of principle by our politicians. Rather, it exists because they have, as so very often, not thought through the consequences of a policy. Apart from the constitutional difficulties, the practical difficulties are huge. The great breadth of the definition of what is a publisher will potentially make the work of the Regulator impossible simply because they will be overwhelmed with work.
In addition, there will be endless opportunity for the wealthier subscribers to the Regulator to pursue legal challenges to the rulings of the Regulator, not least because as I have described the legal position of the Regulator and the RP is a dog’s dinner.
Finally, there is the question of whether the big press publishers will all sign up, even though that will protect them from exemplary damages and costs even if they have won a case in the courts. There are signs that some at least might well refuse. If many refused that would kill the proposals stone dead. But even if they all signed up they could sabotage the intentions of the Royal Charter by engaging in a barrage of legal actions against the Regulator.