Jacob Rowbottom: Entrenching a Royal Charter – some initial thoughts

jacob-rowbottom-photoAfter much political manoeuvring over the weekend, a deal has been struck on the Royal Charter to implement Leveson. A key point is that it will prevent the Charter being unilaterally changed by future governments. An amendment to the Enterprise and Regulatory Reform Bill seeks to achieve this by providing:

“Where a body is established by Royal Charter after 1 March 2013 with functions relating to the carrying on of an industry, no recommendation may be made to Her Majesty in Council to amend the body’s Charter or dissolve the body unless any requirements included in the Charter on the date it is granted for Parliament to approve the amendment or dissolution have been met.”

It is stated in general terms, not referring to the newspaper industry, to avoid anything resembling a ‘press law’.

My initial thoughts are that this clause raises a few questions. It allows for some procedural entrenchment of certain types of Charter, as gives the government power to include ‘requirements’ relating to parliamentary approval, such as a super-majority. It does not require the initial version of the Royal Charter to be approved by Parliament. So, if a future government decides to set up a body by Charter with functions relating to a particular industry, but fears that the opposing party (if elected) may wish to tinker with it, that government can insert terms saying the Charter cannot be amended without a three-quarter majority in both the Commons and Lords. The hands of the future governments would be tied by the decision of its predecessor.

Constitutional lawyers are familiar with this type of issue when looking at the manner and form argument in relation to legislation. However, prerogative powers are different, are less transparent and do not go through the same process of scrutiny.  This means that if the terms of a Charter are thrashed out behind closed doors between interested parties, they can be put in terms that protect it from change without a super-majority. Maybe we should be cautious about giving ministers a power to entrench. While limited to only to Charter bodies ‘with functions relating to the carrying on of an industry’ (and I have no idea how often this will crop up), it sounds like a significant power to give to the government that sets up the body.

The terms of such a Charter may be safe from changes by ministers, as the clause controls recommendations being made ‘to Her Majesty in Council to amend the body’s Charter or dissolve the body’. However, it would still be open to Parliament to override the terms of the Charter. For example, what happens if in future the new press regulator becomes subject to criticism and the political party in government argues that some changes need to be made to the body that recognizes the regulator (it is the recognition body that will be established by Charter). That government would not be able to amend the Charter itself without a super-majority, but it could certainly pass primary legislation to change the functions of the recognition body with a simple majority. If that means the changes have to go through the full rigour of political scrutiny in Parliament, that is no bad thing. However, many of the arguments advanced against having a Leveson statute were that future governments could tinker with the law through amendment. As I argue in a recent paper, that possibility is still left open with the case of a Royal Charter. While a decent system of independent self-regulation can be established through a Charter, it is not clear whether it offers any advantages over legislation.

Jacob Rowbottom is a Fellow of University College, Oxford.

Suggested citation: J. Rowbottom, ‘Entrenching a Royal Charter – Some Initial Thoughts’  UK Const. L. Blog (18th March 2013) (available at http://ukconstitutionallaw.org)