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The Scottish Parliament can legislate to regulate the press in Scotland. This is because this matter is not made a reserved matter. In principle, therefore, it would be competent for the Scottish Parliament to legislate to give effect to the Leveson Report in whatever way they thought fit.
It was for this reason that the Scottish Government appointed an Expert Group under the chairmanship of Lord McCluskey to consider what was the most appropriate way of giving effect to that Report in Scotland. The Expert Group has now published their report but it has been met with an almost universal hostile reception by the press.
However, the Expert Group Report may, to a large extent, now be irrelevant. This is as a result of the way in which the UK Government is proposing to give effect to the main recommendations in Leveson regarding the setting up of the Recognition Panel to recognise the independent regulatory body for the press. The UK Government propose to do so by means of a Royal Charter. This will be contained in an Order in Council made under the Royal Prerogative. There is nothing in the Royal Charter to indicate that it is not intended to extend to Scotland. In the absence of any such indication, it will extend to Scotland.
By implementing the Leveson Report in this way, the UK Government has, in effect, bypassed the need to obtain the consent of the Scottish Parliament to the terms of the Royal Charter in so far as they extend to Scotland.. This is because the consent of the Scottish Parliament is only required, under the Sewel Convention, to approve any Bill proposed in the UK Parliament which deals with devolved matters or affects the legislative competence of the Parliament. Neither the Royal Charter nor the Order in Council will constitute such a Bill. The Scottish Parliament will, therefore, have been deprived of having any say in the provisions of that Royal Charter.
Given the terms of the Royal Charter, it would not appear that the Scottish Parliament could provide for the press in Scotland to be compelled to join a regulatory scheme, as the McCluskey Report proposed. Accordingly, it would seem that all that would be left for the Scottish Parliament to do is to provide , as a matter of Scots law, for similar incentives to encourage the press to join the new regulatory scheme as those made in clause 21A of the Crime and Courts Bill (as amended at Third Reading in the Commons).
In certain circumstances, the UK Parliament can over-ride the prerogative and it is thought that the Scottish Parliament would also be able to do so within devolved matters. It may be thought, therefore, that it would still be possible for the Scottish Parliament to legislate to amend the Royal Charter or to provide that it should not apply in Scotland.
However, this would not appear to be possible because the Royal Charter also provides that it cannot be amended, or the Recognition Panel dissolved, unless a draft of the proposed change has been laid before the UK Parliament and approved by a resolution of two thirds of the members of each House. No mention is made of any need to obtain the consent of the Scottish Parliament, whether by simple majority or otherwise.
These provisions in the Royal Charter are entrenched by clause 92 of the Enterprise and Regulatory Reform Bill (as amended at HL Report) which provides-
“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 requirement included in the Charter on the date it is granted for Parliament to approve the amendment or dissolution have been met.”
This clause extends to Scotland (see clause 97(8)). However, it may be doubted whether, given the very general terms of clause 92, it would trigger the need for a LCM (or Sewel motion) in the Scottish Parliament but, even if it did, the consent required would only relate to that provision and not to the terms of the Royal Charter itself.
The effect of all this is that the Scottish Parliament has, in effect, been deprived of its power to make substantive provision for the regulation of the press in Scotland. This has been done not by any of the recognised ways of amending the list of reserved matters in Schedule 5 to the Scotland Act 1998, such as by means of a section 30 order, but indirectly as a by-product of the UK Government deciding to use the Royal Prerogative to give effect to Leveson.
Suggested citation: I. Jamieson, ‘The Leveson Report, the Royal Charter and the Scottish Parliament’ UK Const. L. Blog (20th March 2013) (available at http://ukconstitutionallaw.org)