Constitutional Law Group March 18, 2013 UK Parliament

Jacob Rowbottom: Entrenching a Royal Charter – some initial thoughts

After 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)

8Comments

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1

John D on March 18, 2013 at 1:18 pm
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Ultimately, the principle of parliamentary sovereignty will always prevail, regardless of any previous legislation, because no parliament can bind its successors, as any constitutional law practitioner will know.
2

Dawn Oliver on March 18, 2013 at 2:22 pm
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What is Parliament’s approval? Resolutions by both houses? Act of Parliament?
Dawn Oliver

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3

Jacob Rowbottom: Entrenching a Royal Charter – some initial thoughts – UK Constitutional Law Group | Current Awareness on March 18, 2013 at 3:40 pm
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[…] Full story […]
4

Gavin Phillipson on March 18, 2013 at 3:45 pm
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The other point is that the super-majority provision in what will become the Enterprise and Regulatory Reform Act that Jacob cites for us could itself simply be removed by ordinary repeal by a future Parliament, after which the PC could make whatever changes it wanted to the relevant Royal Charter. So this way of doing things is just as vulnerable to what the press have been calling “future political interference” as simply putting the relevant provisions themselves in an Act of Parliament.

This doesn’t of course mean that I buy the press argument about crossing Rubicons or other such hysterical nonsense. It simply points up how bizarre this argument has become that the press and Tory leadership have been trumpeting a Royal Charter (which can be changed by a small group of Privy Counsellors, acting in secret) as a way of *preventing* interference by politicians with press freedom in the future. Cameron and elements of the press are now claiming this deal as a triumph because the Charter can’t now be changed without Parliament’s say so (by Parliament removing the super-majority provision). And yet their whole position was that they didn’t want what they called a press law – because Parliament might change it. Instead they will have a “press law” that Parliament can at any time decide to allow Privy Councillors to change. How this makes press freedom safer is not clear to me.
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Jacob Rowbottom on March 18, 2013 at 5:33 pm
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Dawn, the earlier drafts of the Charter stated that change required a resolution of both Houses. I need to see the final version that has been agreed.
John D and Gavin – I agree with what you both say, that is what I get at in my final paragraph. The Charter will only be protected (or entrenched) from amendments via the prerogative powers and does nothing to stop Parliament either repealing the provision in the Enterprise and Regulatory Reform Bill or directly imposing obligations on the Charter body with a simple majority.
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John D on March 19, 2013 at 9:12 am
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One other point I think we should all be aware of is that this measure could mark a restoration of centralised power in the UK political system which has not been seen since 1688. By trying to concentrate power within the Privy Council and by re-introducing closed courts, is this government not moving our country back towards the days when the Court of Star Chamber ruled on behalf of an unelected monarch? The idea of rule by royal proclamation was – I thought – long ago abandoned, though it was referred to in War Plan UK as the alternative method by which Britain would be governed in the event of a nuclear conflict and the collapse of conventional civilian administration in the UK. Bearing in mind the declared intention of certain members of this present government to scrap all external constraints on UK human rights law after the next general election, what does this tell us about the future of human rights in our country?
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Waldron-fan on March 19, 2013 at 10:57 am
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The point is presumably meant to be to make it as politically difficult as possible for politicians to change the system in future – so what matters is that there are several hoops to go through, rather than that anyone is seriously aiming at the alchemist’s goal of making it impossible to change the scheme with an ordinay majority.
What is more striking is how it shows up the problems caused by continuing the smoke and mirrors approach to the Crown’s role in the constitution. The government is generally getting away in the media with the claim that using a Royal Charter as a vehicle instead of an Act of Parliament is somehow a way to reduce the scope for politicians to change the scheme. Once it is explained that Royal Charters go through the Privy Council, which is controlled by the Executive, then it becomes obvious that there is more scope for interference, not less, in putting the scheme in the hands of the Executive instead of Parliament’s. But the patina of the Crown’s involvement can still lead otherwise sensible political commentators & broadcasters to swallow the idea that a Royal Charter is somehow superior to grubby legislation.
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The Leveson Royal Charter deal | Head of Legal on March 23, 2013 at 11:26 pm
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[…] fact, clause 92 may even transfer power from Parliament to government, as Jacob Rowbottom explains at the UK Constitutional Law Group. It refers not simply to the press Royal Charter but to any new Royal Charter “with functions […]