The government’s attempts to reform press regulation have something of the surreal about them. A draft royal charter, full of suitably medieval language, was published by the Conservatives last week - apparently, because they did not want to put a bill before parliament. But, despite that, they published draft legislation as well. What was going on?
Last November, little more than an hour after Lord Justice Leveson published the findings of his inquiry into press practices, the prime minister declared himself opposed in principle to ‘writing elements of press regulation into the law of the land’. David Cameron was concerned that legislation would ‘create a vehicle for politicians... to impose regulation and obligations on the press’.
This was not what Leveson had recommended. His idea was that a regulatory body should be designed and established by the industry itself. But a ‘recognition body’ would have to decide whether any self-regulatory body had met the required standards. The recognition body would also have to keep the press regulator under review and ensure that standards did not slip. Parliament’s role would be limited to setting out those standards and establishing the recognition body.
That was broadly what the Conservatives proposed last Tuesday, except that the recognition panel (as it is now called) and the required standards would be established by royal charter rather than parliament. The draft charter released by the Department for Culture, Media and Sport carried a disclaimer: it was being published ‘outside… the normal arrangements for collective agreement’ and did not reflect an agreed position between the Conservative and Liberal Democrat parties. Labour was not too happy with it either.
Royal charters are granted by the Queen under prerogative powers, which pre-date the establishment of the modern parliamentary system in the late 17th century. The Queen acts on the advice of the Privy Council, which for this purpose consists of government ministers. So a charter can allow ministers to create a corporate body without parliamentary approval. That is fine for creating a body such as the University of Cambridge (in 1231), or the Chartered Institute of Legal Executives (in 2011). It is less attractive for the newspapers’ equivalent of the Legal Services Board.
As drafted, the charter creating the recognition panel would continue in force ‘until it is dissolved by Us, Our Heirs or Successors in Council or otherwise’: the Queen really does use the royal ‘we’ as well as an abundance of capital letters. The recognition panel could not amend or dissolve its own charter without a two-thirds majority in both houses of parliament as well as the support of the three main party leaders. But that could not prevent the government of the day from dissolving the charter or changing its terms at any time: prerogative powers are exercised on the advice of ministers, not parliament.
The job of the recognition panel would be to recognise regulators. Any regulator would have to meet the recognition criteria set out in schedule 3 of the charter. The aim of setting up the recognition panel by royal charter seems to be to prevent MPs having any say in those criteria.
But that has not stopped the campaign group that speaks for victims of press intrusion from complaining that the draft charter falls well short of Leveson. For example, schedule 2 says that when the recognition panel is deciding whether to recognise a regulator, it need not take into account any of Leveson’s 14 recommendations on how a regulatory body should be run.
However, the government will still need to get legislation through parliament in order to make the new regulatory system effective. Leveson proposed a carrot-and-stick approach: the incentive would be a low-cost complaints arbitration scheme, while those publishers not prepared to join might end up paying higher damages in the courts. And that is reflected in a modest eight-clause draft bill published alongside the draft charter. It would apply to publishers of newspapers or websites that contain ‘news-related material’, which may include – in a phrase that must surely be making its debut on the statute book – ‘gossip about celebrities’.
Once a publisher has joined a regulator that has been recognised by the recognition panel, the bill would give it several advantages. It would not have to pay exemplary damages in defamation and privacy claims and it might not have to pay costs to a claimant who has failed to use an arbitration scheme.
The bill lacks a title and is clearly designed to be tacked on to other legislation going through parliament, such as the Defamation Bill. But that cannot disguise the fact that it would be ‘writing elements of press regulation into the law of the land’. Since that particular Rubicon has now been crossed, why not use the normal parliamentary process to set up the recognition panel as well?