Unchartered territory

The Royal Charter is an archaic and undemocratic device and its use is not matched to the purpose of creating an effective and independent press regulator, says Amber Melville-Brown


Amber
Amber Melville-Brown

Two months on from the publication of Lord Justice Leveson’s report into the Culture, Practice and Ethics of the Press, are we finally seeing some tentative steps towards the implementation of its proposals?

If so, it appears that the implementation now proposed is not in line with what Leveson recommended. The dreaded word ‘statute’ has been replaced in front bench Tory proposals by a more palatable phrase: implementation by ‘Royal Charter’.

Leveson LJ’s inquiry found the current press regulator, the Press Complaints Commission (PCC), had failed in its task, and recommended a stronger, independent replacement.

In order to ensure that the regulator rising from the ashes of the PCC was indeed strong and independent, Leveson LJ proposed that the framework for the new regulator be underpinned by statute.

As Leveson LJ himself anticipated, statute is apparently a four letter word when spelt out to the press. Before the ink was even dry, David Cameron had added his voice to that of the majority of the British press, asserting that he had ‘severe reservations’. The message from Westminster is that Royal Charter is the way in which the Tories plan to underpin Leveson’s recommendations.

As we forge into the 21st Century, it may seem a little odd that we are considering implementing proposals for media regulation by the somewhat archaic mechanism of Royal Charter.

Lord Justice Leveson
Lord Justice Leveson

A Royal Charter is granted by means of the Royal Prerogative, the remnants of absolute power left with the Crown on account of not having been devolved to other constitutional bodies. Once granted, Royal Charters incorporate an organisation with certain powers, rules and other responsibilities to which they must adhere.

Advocates of ‘Royal Charter’ implementation argue that it is a sensible halfway house which protects freedom of the press by avoiding the political interference of new legislation, while still ensuring that the press are kept in check. Arguably the use of Royal Charter achieves neither of these goals.

While the Leveson Report didn’t anticipate the use of Royal Charter, it does make clear why the use of statute, although controversial, is essential.

Three principal uses are identified: ‘First it would enshrine for the first time, a legal duty on the Government to protect the freedom of the press. Second, it would provide an independent process to recognise the new self-regulatory body and to reassure the public that the basic requirements of independence and effectiveness were met…Third, by recognising the new body, it would validate its standards code and the arbitral system sufficient to justify the benefits in law that would flow to [the press bodies which] subscribed [to the new regulator].’

Once a body is established under Royal Charter, the only body that can alter that charter is the sovereign, which in practical terms means the Government of the day. Conversely, this means that unlike with statute, under Royal Charter Governments would have the ability to interfere with the press without recourse to Parliament.

Further, the use of Charter alone falls far short of putting in place the safeguards and framework Leveson LJ recommended are essential to ensure both participation by the press in the new regulator, as well as to guarantee freedom of that press from Government interference.

Statute is needed to implement Leveson LJ’s recommendation for legal incentives to encourage press bodies to join the new regulator. Avoiding statute altogether would also mean that there will be no obligation on the Government to protect freedom of the press, as proposed by Leveson. Some form of statute is therefore needed.

All of this begs the question, as Harriet Harman MP posed in the Commons, if statute is going to be needed anyway, why not simply implement by statute in the first place?

The Royal Charter is an archaic and undemocratic device and its use is not matched to the purpose of creating an effective and independent press regulator which will protect the public from Fleet Street excess.

In trying to placate the press, the Royal Charter proposal risks undermining Leveson LJ, while at the same time exposing the press to future Government interference.

Amber Melville-Brown is a partner at Withers. The views expressed in this article represent those of the author and are not necessarily those of Withers.