The Magna Carta represented a challenge to the powers of the English monarch, yet the proposed royal charter on press regulation, establishing a so called ‘recognition body’ and a new press complaints system, shows how monarchical ‘infrastructure’ is still being used to undermine sound democratic process. It raises serious issues of sovereignty.
There is something of an irony in the government’s decision to use the device of a royal charter to establish a body that will run a press complaints system. The belief is that a royal charter somehow makes the regulator more robust and independent of government than an Act of Parliament. The entirely laudable justification is that the government doesn’t want to restrict the freedom of the press, but the irony is that in order to preserve a free press, the government is not making law through parliament but is using a completely undemocratic device – a royal charter, made by the Queen on the advice of the Privy Council.
The idea that parliament is incapable of establishing independent, arms length bodies, free of political interference, is a nonsense. The bills proposed by Hacked Off, the Labour Party and Lord Lester of Herne Hill would have guaranteed press freedom. And if our parliament can pass laws to provide a generally independent system of courts and tribunals to settle disputes and administer justice, in which the judges are clearly free to strike down government decisions, why can’t parliament implement the Leveson proposals?
The continued use of the so called ‘royal prerogative’ is clearly convenient for governments. We chopped off the head of our monarch more than 100 years before the French, who got rid of their monarch and their monarchy. Unlike the French, we invited our King back. The constitution that evolved after the restoration of the monarchy required the King or Queen to act on advice, mainly of ministers who are accountable to parliament. But some powers remained reserved to the monarch. Perhaps the most important of these is the power to choose the prime minister. Our ministers today exercise other prerogative powers all the time, often through the Privy Council.
The Department for Culture Media and Sport (DCMS) is the government department responsible for policy on regulating press complaints. Its functions are clear from the name: culture, media and sport. The functions of the Privy Council are not so easy to summarise. As well as making royal charters, including the BBC Charter its other responsibilities include making Orders in Council, summoning, dissolving and proroguing parliament (when a session ends but without an election being called) and orders declaring and ending war. There doesn’t appear to be any logic to this. Indeed the government admits it is more historical accident. Gov.uk describes what the Privy Council does, without really explaining: ‘The Privy Council is how interdepartmental agreement is reached on items of government business which, for historical or other reasons, fall to ministers as privy counsellors rather than as departmental ministers.’
All present and former cabinet ministers are members, by constitutional convention, as well as the speaker, the bishops and many other people holding public office. They are styled ‘Rt Hon’. The quorum appears to be three, but that is a convention and not a written rule. Members have to stand up during meetings, which typically take place once a month for about half an hour. They are sworn to secrecy by their oath of office. That said, the Privy Council website describes this idea of secrecy as a ‘myth’.
The Privy Council website tells us that royal charters ‘have a history dating back to the 13th century. Their original purpose was to create public or private corporations (including towns and cities)… Nowadays new Charters are normally reserved for bodies that work in the public interest (such as professional institutions and charities)…’ But the website also explains that a charter is unlikely to be granted where it is opposed.
Under the UK constitution, the sovereign law making body is not parliament or the Queen but the Queen-in-Parliament. Yet the Privy Council can and does advise the Queen on her own separate and distinct ‘prerogative’ power to make laws, known as Orders in Council. Orders of Council are made by Ministers as privy counsellors but do not need the Queen’s approval. Statutory orders are made under the authority of Acts of Parliament, using powers previously granted by parliament. Prerogative orders do not need parliamentary authority at all.
Royal charters are also a species of legislation. After all, if a formal document made by the Queen says, in effect, that there shall be a mechanism to allow citizens to complain about press intrusion, surely that is legislation? A feature of the proposal which emerged from cross party talks is that as well as the royal charter to be made by the Queen in Council, parliament has legislated separately to ensure Ministers cannot ask the Queen to amend the charter through the Privy Council without parliamentary approval, which is how existing charters are amended. Section 96 of the Enterprise and Regulatory Reform Act reinforces paragraph 9.2 of the Charter itself, so that the Charter cannot be changed without the support of a two-thirds majority in both Houses of Parliament. Additionally, the Crime and Courts Act puts media organisations that don’t participate in the new regime at risk of exemplary damages in litigation.
The distinction between the constitutional authority of parliament to make Acts and the authority of the monarch to make royal charters is clear from the formal words in each kind of document. An Act of Parliament must begin with a form of words that shows it has been ‘enacted’ ‘ by and with the advice and consent of the Lords Spiritual and Temporal, and Commons… and by the authority of the same’. The equivalent clause in the draft charter – the clause that asserts the royal authority to make it – comes at the top of the second page (bold text and capitals are from the original) -
NOW KNOW YE that We by Our Prerogative Royal of Our especial grace, certain knowledge and mere motion do by this Our Charter for Us, Our Heirs and Successors will, ordain and declare as follows…
An Information Note published by the Department for Culture Media and Sport explains how a royal charter can be made without the usual parliamentary scrutiny of first reading, second reading and so on. The government must approve the Charter at the Cabinet Home Affairs Committee. The Privy Council must then meet and recommend to Her Majesty that the Charter is granted.
David Cameron told parliament in March that “The key point about the difference between a royal charter and setting out in legislation what a press regulator needs to look like, is this: if we pass a law in this House on press regulation that says, ‘This is what the recognition body has to look like; this is what the press regulation has to look like; this is what the fines are like; this is what the processes are like’, we cross the Rubicon. It would give the House and future Governments the ability to legislate in a totally illiberal way and to restrict freedom of the press.”
It is the exercise of prerogative powers that is illiberal. A report to the group Justice in 2009 explained more about the Privy Council than any government document ever did. It argued that the Privy Council matters and is not irrelevant. It concluded that fundamental consideration should be given to the future role, and even continued existence, of the Privy Council.
The adoption of the charter in England and Wales has been delayed following the publication of an alternative version, backed by sections of the media. It remains to be seen if the Scots go down the same route. Although there is a political consensus for a charter, there is opposition from interest groups. Liberty has called it ‘constitutionally inappropriate’.
The use of a charter, made by the Queen on the advice of the Privy Council, is neither transparent nor democratic, even with the safeguards approved by parliament. It amounts to government legislation without scrutiny by our elected representatives, another element of Britain’s constitution that expresses a quiet power without scrutiny or legitimacy. It may guarantee press freedom, but it undermines parliament.