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Guest post: Prerogatives, power and press regulation

I make no apology for returning to the question of the Royal Charter on Self-Regulation of the Press. This was discussed in my earlier post of 14 October, which concluded by noting: ‘Perhaps the Charter will somehow be challenged before the courts. Unless that happens, the existence of a prerogative power to regulate the press is likely to become accepted given that the Charter itself effectively claims a prerogative right to do so by using the words: “Now know ye that we by our prerogative royal …..will, ordain and declare ….” It might then be wondered what might be ordained and declared at some time in the unknown future when some further need for State Control over some activity is perceived.’

The House of Lords has now registered concern, as reported in The Daily Mail, 26 October:

‘Controversial plans to impose a Royal Charter on the Press next week are “inconsistent with our democratic traditions”, senior peers warned last night. Lord Inglewood, chairman of the House of Lords communications committee, said Parliament had been “bypassed” by the Government in its rush to use a Royal Charter to regulate the Press. The former Tory culture minister said his committee was alarmed that peers have not been given the chance to consider the proposals which would set up a new regulatory framework for the Press in the wake of the Leveson inquiry.’

Whether or not the Lords have been allowed to debate the proposed Charter is a matter which cannot be questioned in the courts since the Bill of Rights 1688 prevents challenge to Parliamentary proceedings.

The Daily Mail article also states: ‘Industry bodies are to apply to the High Court for judicial review. They will argue a decision by the secretive Privy Council, to reject an industry-backed charter for self-regulation in favour of one written by politicians should be quashed.’

Further concern is expressed in the Daily Mail’s article 26 October – ‘Privy Council must not be above the law’. This article states: ‘The newspaper industry is seeking judicial review of this decision, but has been told by the Treasury Solicitor that the Privy Council, acting under Royal Prerogative, cannot be subject to legal challenge.’

I have not had the privilege of seeing any such legal advice. However, does a claim to be acting under ‘Royal Prerogative’ powers prevent a judicial review? The short answer is no. That was the answer given by the House of Lords in the GCHQ case in 1983. Their Lordships cited, with approval, the earlier authorities such as Attorney-General v De Keyser’s Royal Hotel [1920] AC 508 and Burmah Oil Co Ltd v Lord Advocate 1964 SC (HL) 117.

Lord Scarman said: ‘I would wish to add a few, very few, words on the reviewability of the exercise of the royal prerogative. I believe that the law relating to judicial review has now reached the stage where it can be said with confidence that, if the subject matter in respect of which prerogative power is exercised is justiciable, that is to say if it is a matter upon which the court can adjudicate, the exercise of the power is subject to review in accordance with the principles developed in respect of the review of the exercise of statutory power. I would observe that the royal prerogative has always been regarded as part of the common law, and that Sir Edward Coke had no doubt that it was subject to the common law… [declaring] that “the King hath no prerogative, but that which the law of the land allows him.”‘

Lord Diplock said: ‘I see no reason why simply because a decision-making power is derived from a common law and not a statutory source, it should for that reason only be immune from judicial review’.

Of course, on one view, the Royal Charter merely sets up the ‘Recognition Body’ and the use of Royal Charters to incorporate bodies is commonplace and of long antiquity. That would be, I submit, an excessively narrow view of what this Royal Charter purports to do. In reality, it presumes the existence of a prerogative power to regulate the press and the charter sets out in some detail the considerable powers of the Recognition Body. This goes beyond the traditional use of Royal Charters (e.g. charters of incorporation for the Welsh Livery Guild, Worshipful Company of Hackney Carriage Drivers etc) and strays into territory which should, constitutionally, be occupied by Parliament. The Recognition Body’s powers in relation to regulators will be such that there is bound to be a marked, and very possibly negative, impact on the freedom of the press. The existence of such a prerogative power is questionable and it is right that the courts be asked to declare whether such power exists and, if so, what is its scope.

At the end of the day, in a constitutional democracy, the position should be that ‘the politicians have no prerogative, but that which the law of the land allows them’.

The law blogger ObiterJ writes at Law and Lawyers. Click here to follow on Twitter

Click here for an in depth analysis of proposals on press regulation