Aileen McHarg: The Leveson Report, the Royal Charter and the Scottish Parliament: A Reply to Jamieson

aileenIain Jamieson’s earlier post argues that the ability of the Scottish Parliament to implement its own model of press regulation in response to the Leveson Report has effectively been ousted by the UK government’s proposal to establish a UK-wide system of press regulation by Royal Charter.  I would take issue with two aspects of his analysis.

First, Jamieson claims that, since the provisions of the proposed Royal Charter will be entrenched by clause 92 of the Enterprise and Regulatory Reform Bill, which applies to Scotland, the Scottish Parliament cannot legislate to amend the Royal Charter or provide that it should not apply to Scotland.  Clause 92 provides that the Charter cannot be amended except in accordance with the procedure laid out in the Charter itself (two thirds majority of each House).  As Jacob Rowbottom has argued on this blog, the degree of entrenchment actually provided by this device is limited because clause 92 can itself be repealed or amended by subsequent UK legislation with no special majority.

To argue that the Scottish Parliament will nevertheless bound be by clause 92 therefore requires the further claim that, because clause 92 (however indirectly) ‘occupies the field’ in relation to press regulation, the Scotland Act 1998 will be impliedly repealed insofar as it devolves power to legislate on that issue to the Scottish Parliament.  There are at least three ways of responding to this implied repeal argument, all of which lead to the conclusion that the Scottish Parliament will not in fact be bound by clause 92.

The first, and most speculative, response would be to rely on Laws LJ’s obiter dictum in Thoburn to the effect that, since the Scotland Act is a constitutional statute, it cannot be impliedly repealed.  This would mean that the only way in which the Scottish Parliament’s legislative competence can be reduced would be through express amendment via primary legislation or a section 30 order, either of which would require (by convention, in the former case, and by statute, in the latter) the consent of the Scottish Parliament.

It is, however, unnecessary to adopt such a heterodox approach.  A second, more conventional, approach would be to accept that the Scotland Act may be impliedly repealed, but to argue, as Barber and Young have done (‘The Rise of Prospective Henry VIII Clauses and Their Implications for Sovereignty’ [2003] PL 112, pp 112-6), that a statute can only be impliedly repealed by a subsequent statute on the same subject matter, not merely by a later conflicting statutory norm.  Since the Enterprise and Regulatory Reform Bill does not deal with the same subject matter as the Scotland Act (the division between reserved and devolved legislative competences), it cannot impliedly repeal the transfer of power to the Scottish Parliament effected by the Scotland Act even if a norm contained within it or flowing from it for the time being ‘occupies the field’ of a particular devolved competence.  It would, on this analysis, still be open to the Scottish Parliament to assert its legislative competence in relation to press regulation and repeal (expressly or impliedly) the provisions contained in clause 92.

A third, even more conventional approach, would lead to the same conclusion.  This would be to accept that a statutory provision can be impliedly repealed by a later inconsistent statutory norm, even if the subject matter of the two statutes is not identical.  This view, however, requires a more nuanced approach to when such a conflict arises.  In relation to the Scotland Act 1998, for instance, it may be argued that the transfer of legislative competence in devolved areas to the Scottish Parliament is not inconsistent with (and therefore not impliedly repealed by) later UK legislation on a devolved matter because the Scotland Act itself, in s.28(7) expressly envisages that such a situation may occur.  This approach suggests that the Scotland Act, properly understood, involves a sharing of legislative power between the UK and Scottish Parliaments, and that the latest norm on a particular devolved matter will prevail irrespective of the Parliament from which it emanates.  This analysis would appear to be the one which best fits the post-devolution legislative practice, where the Scottish Parliament has regularly consented to allow the UK Parliament to legislate on its behalf, but has on some occasions subsequently amended such legislation.

The second point which arises out of Jamieson’s blog concerns whether the UK government is legally or constitutionally entitled to impose a system of press regulation on Scotland via the royal prerogative.  The constitutional position, as set out in written answer by Tony Blair on 30 June 1999,  is that where the exercise of prerogative powers relates to a matter within devolved competence, it is for the First Minister rather than Ministers of the Crown to advise the Queen.  The situation is slightly different in relation to business of the Privy Council, such as grant or amendment of a Royal Charter, because it is the Privy Council as a whole rather than a particular minister which advises the Queen.  Nevertheless, the written answer states that:

the advice in relation to a particular matter which the Privy Council offers to Her Majesty is in many instances based, either by virtue of statutory provision but more often by convention, on advice or information provided to the Privy Council by one or more particular Ministers of the Crown as the Privy Counsellor with the principal interest in that matter.’

It goes on to state that, in areas of devolved competence, the Privy Counsellor with the principal interest would be the First Minister (who is a member of the Privy Council).

It is not clear from these provisions whether the Privy Council as a whole is entitled to depart from the advice of the principal minister.  Where there is a conflict of views between members of the same administration it may perhaps be argued that the majority view should prevail.  However, in the case of a conflict between the view of the First Minister and other Privy Counsellors representing the UK government, there is a strong case (for the reasons that Jamieson outlines) for saying that it should not.

Given that the question of who should advise the monarch on the exercise of the royal prerogative is a matter of convention rather than law, it may be difficult to argue that the UK government would be acting illegally if the Privy Council were to recommend the adoption of a system of press regulation applying throughout the UK in the face of Scottish opposition.  As a matter of constitutional morality, though, it is hard to avoid the conclusion that to treat the design of a new UK-wide system of press regulation as a matter for negotiation purely between the main parties in the UK Parliament is constitutionally improper.

Contrary to Jamieson, therefore, I would argue that just because the UK government has chosen a regulatory vehicle which manages to avoid the application of the Sewel Convention, it does not thereby follow that the Scottish Parliament is compelled to accept it or deprived of its competence to legislate for a different system of press regulation in Scotland.

(I am grateful to Chris Himsworth for his very helpful comments on this note and particularly for alerting me to the Blair written answer.)

Aileen McHarg is Professor of Public Law at the  University of Strathclyde.

 Suggested citation: A. McHarg, ‘The Leveson Report, the Royal Charter and the Scottish Parliament: A Reply to Jamieson’ UK Const. L. Blog (21st March 2013) (available at http://ukconstitutionallaw.org)

 

6 Comments

Filed under Devolution, Scotland

6 responses to “Aileen McHarg: The Leveson Report, the Royal Charter and the Scottish Parliament: A Reply to Jamieson

  1. Iain Jamieson

    I accept that it would be possible for the Scottish Parliament to repeal a provision of a Westminster Act if it relates to a matter within the competence of the Scottish Parliament. It would, therefore, be possible for the Scottish Parliament to repeal clause 92 of the Enterprise and Regulatory Reform Bill (when it is enacted) to the extent that it applies to a Royal Charter relating to matters which are not reserved. This would be the case irrespective of whether or not the Scottish Parliament consented to clause 92 by means of a LCM.
    However, that is not an end to the matter because there remains the Royal Charter itself.
    The Royal Charter would be made by Her Majesty on the advice of the Privy Council and would be contained in an Order in Council. If that Royal Charter extends to Scotland, it would have legal effect in Scotland. It must be extremely doubtful whether a court would hold that it did not have such effect because of what did or did not take place within the Privy Council , even if it was competent to inquire into such matters.
    Accordingly, such a Royal Charter will make provision about matters within the legislative competence of the Scottish Parliament without the consent of that Parliament.
    There remains the question whether the Royal Charter could be amended to provide that it did not extend to Scotland.
    In view of the entrenched provisions within the Royal Charter, it would not appear to be possible for the First Minister to advise Her Majesty simply to amend it so that it did not extend to Scotland, without first obtaining the consent of two thirds majority of the members of both Houses of the UK Parliament to that amendment.
    Would it, however, be possible for the Scottish Parliament simply to over-ride those entrenched provisions in the Royal Charter and legislate to provide that the Royal Charter did not extend to Scotland? This might be thought unlikely but, unless it could do so, while the Scottish Parliament may not have lost its competence to legislate to regulate the press in Scotland , it would simply not be able to exercise that competence while the
    Royal Charter subsists.

    Iain Jamieson

  2. Waldron-fan

    I don’t want to be a wet blanket, and I appreciate that this is the Constitution blog, so these Scotland-UK points are interesting, but I am not convinced they do really arise here. I have just posted a comment in reply to the original Jamieson article, but the same points seem to hold in relation to this one.
    This article first attacks the claim “that, because clause 92 (however indirectly) ‘occupies the field’ in relation to press regulation, the Scotland Act 1998 will be impliedly repealed insofar as it devolves power to legislate on that issue to the Scottish Parliament.” I take no issue with the demolition of the implied repeal point, but I cannot see that it arises in the first place, because there is no serious case for thinking clause 92 does occupy the (relevant) field at all.
    The article then attacks the idea that “the UK government is legally or constitutionally entitled to impose a system of press regulation on Scotland via the royal prerogative”. Again I take no issue with the demolition of the prerogative point, but again it does not seem to arise in the first place, because there is equally no serious case for thinking the Royal Charter (even with clause 92 and the exemplary damages amendment to the Crime & Courts Bill) does “impose a system of press regulation on” anybody at all.
    The only field occupied by clause 92 is the field of amending Royal Charters. Scotland can legislate for a compulsory press regulation scheme without touching the Royal Charter. Even the Charter does not occupy the field of press regulation – it merely sets up a Recognition Panel in case any publisher might fancy setting up a (self-)Regulator and having it “recognised” (the only consequence of which is avoidance of exemplary damages – not an issue if you have a compulsory scheme and don’t need sticks & carrots) – the package does not oblige any publisher or Regulator to knock on the Panel’s door at all, let alone impose a system of regulation.
    Jamieson’s reply equally assumes the Scottish government would have to amend the Royal Charter to make room for its own legislation. But I cannot see why – the Charter covers recognition of particular kinds of voluntary self-regulation schemes and does not require anyone to set one up – it does not prevent Scotland legislating for a compulsory scheme with different terms, so it does not need repealing or amending or worrying about whether it extends to Scotland.
    As I say, the constitutional issues are fascinating, but they appear only to arise in this case if someone is determined to pick a fight on a non-issue.

  3. Aileen McHarg

    Iain – why might it be thought unlikely that an Act of the Scottish Parliament could not legislate to provide that the provisions in the Royal Charter did not extend to Scotland (assuming that the entrenching provisions in the Enterprise and Regulatory Reform Bill are also repealed by the legislation)? Are you suggesting that prerogative legislation ranks higher in the hierarchy of legal norms than Scottish Parliament legislation?

    • Iain Jamieson

      Aileen Apologies for the delay in replying.
      I agree that, in principle, the Scottish Parliament could provide that the Royal Charter ( and section 92 of E&RRBill) do not extend to Scotland, so far as they relate to devolved matters.
      However, the Standing Orders require that any such Bill would require the Crown consent during the passage of the Bill in the Scottish Parliament because it affects the prerogative. Such consent should not be presumed particularly when the view might be taken that it would be constitutionally more appropriate to amend the Royal Charter by another Royal Charter on the advice of the Privy Council. The recent blog by Tom Adams is instructive on the question of Crown consent.
      Whatever might be the theoretical position, I doubt whether this situation is likely to occur, as a matter of practical politics, unless the Royal Charter completely fails in its purpose. That was why I suggested that the effect of the Royal Charter is effectively to deprive the Scottish Parliament of its competence to legislate to give effect to the McCluskey proposals for the regulation of the press in Scotland, even although the Scottish Parliament has had no say in the provisions of that Charter

  4. Aileen McHarg

    Thanks Iain. I hadn’t thought of Royal Consent as a barrier – I’m still struggling to get my head around this concept, tbh. However, it does raise three further issues. 1. Who would advise the monarch on whether or not to grant Royal Consent in this case? If it is the First Minister, then this is no real barrier to an ASP on this topic, provided that it has the support of the Scottish Government. 2. If obtaining Royal Consent is simply required by the Scottish Parliament’s Standing Orders, could those Standing Orders be changed to dispense with Royal Consent (altogether or in a particular case)? 3. If the Parliament chose to proceed with legislation in the absence of Royal Consent, or if the FM wrongly informed the Parliament that Royal Consent had been granted, would the legislation be invalid, or be liable to be refused Royal Assent (again, on whose advice)?

    • Iain Jamieson

      Interesting questions to which I do not have the answer.
      In the case of a public Bill, it is for the Scottish Government to seek Crown consent but that may not necessarily mean that it would be for the First Minister to advise upon whether such consent should be given in this case. For example, depending upon the matter to which consent is being sought, the Palace may seek advice from other bodies, such as the Crown Estate Commissioners if the Bill affects the Crown Estate, upon whether it is appropriate to give such consent.
      In view of section 28(5) of the SA and for other reasons, I very much doubt whether a court would invalid an ASP if Rule 9.11 of the Parliament’s Standing Orders is not complied with.. What may be of more interest, however, is to speculate whether, if that Rule is not complied with, the Parliamentary authorities would permit a motion to be debated that the Bill is passed or whether the Presiding Officer has a discretion, under section 32(1) of the SA, to decide not to submit the Bill for Royal Assent.

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