I was in court 68 at the Royal Courts of Justice yesterday morning (30 October) to hear the Press Standards Board of Finance’s (PressBoF) urgent application for interim relief – an injunction – to stop the government from getting the cross-party press regulation Royal Charter granted by the Queen in Privy Council this afternoon. The Privy Council was due to ‘meet’ at 5.30pm (these are very short meetings in which everyone stands, I’m told; the meeting would be a constitutional formality); the hearing began at 10.30am.
Right from the start, Lord Justice Richards made clear he thought the court could deal not only with the application for the injunction, but with the question whether permission for judicial review should be granted. That surprised me, and I suspect some others in court.
Richard Gordon QC, for PressBoF, put his emphasis on his strongest point: the fact that the Department for Culture, Media and Sport never communicated to PressBoF in advance the criteria which would be applied by ministers in deciding whether to recommend that its, PressBoF’s, draft Royal Charter be granted. As I say, the Privy Council stage is pure formal dignity. The reality is that ministers, in their recommendation, make the decision.
Gordon had to concede, under some pressure from Lord Justice Richards and Mr Justice Sales (who between them were quite an insistent bench) that the grounds he was advancing – that PressBoF had been denied the right to be heard, that there’d been a breach of a voluntarily undertaken duty adequately to consult, and that there’d been a breach of a procedural legitimate expectation – all amounted to much the same thing.
But it all came back, he continued to argue, to the failure to communicate criteria. PressBoF, he argued, has been unable to focus any representations on the concerns ministers had about their draft Charter. It would have simply had to stab in the dark, he said, quoting Lord Justice Sedley. And anyway, it was never actually given a chance to make any representations.
As far as interim relief was concerned, Gordon argued that his case was a seriously arguable one; and that the balance of convenience weighed in favour of an injunction because of the great public interest in ensuring any decision on press regulation, changing hundreds of years of history, was properly made. He offered some rousing phrases – sound-bites, if you like – about the unique nature of this case and the constitutional importance of the issues at stake.
Lord Justice Richards put to him the point I have previously raised: wasn’t it odd that he wanted an injunction to stop the government’s Royal Charter without (as things stood) making any legal complaint about it? On PressBoF’s case as set out in its grounds, it wanted to injunct decisions it did not say would be unlawful.
Gordon’s response was twofold. First, he argued that proceeding with the cross-party Charter would be unlawful – he stressed the interrelatedness of the Charters and the legal issues, and argued it would be unlawful to proceed with one until the other was lawfully considered. Second, he offered an undertaking to seek judicial review of the government’s cross-party Royal Charter, if the court thought that necessary for interim relief.
Gordon was also put under a lot of pressure by the judges about the threshold test for an injunction against the Crown. Did he concede he needed to establish more than simply a seriously arguable case? He seemed at first to agree with this; but as his submissions went on he seemed to resile from that, arguing that in a way the public interest (which he saw as unequivocally favouring his clients) informed the threshold and the balance of convenience. It became clear later that the judges, too, felt he’d backtracked. Funnily enough, though this was a point on which Gordon seemed most under pressure from the bench, it was also a point he ultimately won.
Natalie Lieven QC, for the government, argued confidently that a high threshold was needed for an injunction against the Crown in these circumstances: a strong prima facie case. The authorities, she said (Scotia Pharmaceuticals and M v Home Office) established that clearly. And the public interest, and so the balance of convenience, favoured no further delay in implementing the long-debated Leveson report.
As for the merits of the underlying judicial review, she saw this as a case ‘not with any merit at all’. The duty to act fairly did not require much in a case like this, and anyway, the press had had ample opportunity to argue its case both during and after the Leveson inquiry.
PressBoF could have made whatever representations it wanted in supported of its draft Charter, and it was invited to do so. In reality, they chose not to do so, preferring to wait to react. They had played a game, she said. Anyway, Hacked Off had been able to make full representations about the press draft, If they could, why couldn’t PressBoF?
She made a strong point, that the ‘lack of consultation’ argument came oddly from PresBoF. It was treating the entire process as though it were about the determination of an individual application made by it. Yet in such a case (for instance in a planning context) it would be others, not the applicant, who might have a right to be consulted.
Gordon made few detailed points when he got up again: he referred again to his strongest point about the criteria, saying it was unfair to characterise PressBoF’s approach as disingenuous and to expect them just to ‘throw out information’. Looked at as whole, he said, the process was wholly legally defective.
The judges retired only for about ten minutes before Richards LJ gave judgment. He saw no arguable case for judicial review. In reality PressBoF had had ample opportunity to contribute its ideas and representations. The issues were well known, and PressBoF must have known what they were.
There was no duty to inform PressBoF in advance, he said, of the reasons why its draft might be found wanting; the Privy Council was plainly entitled to make its decision without going through the additional loop PressBoF seemed to want. None of the reasons ministers gave for not recommending the PressBoF draft can have come as a surprise. Not was there any evidence that, had a different process been adopted, a different result would have been reached.
Permission for judicial review was denied, and so the injunction application fell. But although there was no higher threshold for an injunction in this type of case, PressBoF’s case was ‘at best, weak’ and in any event there was a strong public interest in allowing the Privy Council to consider the cross-party Charter. So Richards LJ wouldn’t have granted an injunction in any event.
Sales J agreed.
Costs were awarded to the government, summarily assessed at £13,545.50 if my note is right. The judges clearly felt this was a very reasonable figure (and it may simply have covered counsel’s fees rather than the costs of government lawyers’ time).
Gordon’s application for leave to appeal was refused. He went away with his clients (who seemed to me surprised at the extent of their defeat – they may have expected to be refused an injunction at worst, but not permission for JR), no doubt to consider the possibility of an urgent appeal.
The advocacy was impressive. Gordon has a difficult argument to make, facing a judicial headwind at times, and won on one or two difficult points that did not, however, win the day. I was watching a highly skilled player bluff with a weak hand. Things were less uphill for Lieven, and she failed to bring home points she made strongly and on authority. My one criticism of the judges is that they really ought to have challenged her more stiffly on the question of the threshold for an injunction, before simply rejecting her argument. But she rubbished the underlying judicial review claim very effectively, and obviously won on that.
As far as the judges were concerned, I was impressed with this bench (as I used to be impressed by Philip Sales when he was a barrister), by the clarity of their thought and by their insistence on clarity from the advocates.
Today was a serious defeat for PressBoF. Not only did they not get their injunction: their entire judicial review was killed stone dead.
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