Normally the mention of a “cross party consensus” is reassuring: it means that the parties are reaching agreement on a big venture, for example transport infrastructure, or (if only!) the NHS or pensions, that necessarily spans many years. In this way, abrupt changes of policy are avoided when there is a change of government. Today however, I have had a very different reaction to the announcement that there is to be a Royal Charter on Press Regulation, reached by cross party consensus, and available to be seen on the web. https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/249783/Final_Draft_Royal_Charter_11_Oct_2013.pdf According to the news, senior ministers from the three main parties reached agreement, including certain small concessions to the newspapers. We know that the original draft was drawn up in similar fashion but with input from the lobby group Hacked Off.
Does anything strike the reader as odd about this? Our system of making new laws is based on discussion, analysis, and voting by MPs, and a great deal of input and amendments from the House of Lords. It does not seem as if we parliamentarians will get a say about this new “law” at all. It is presented as a done deal, albeit that the document has been laid before Parliament. I am unaware of any opportunity to discuss it in the House this month, although it may be that at the last minute there will be an addition to the business timetable of the House. There is an oral question about press regulation on 24th October,but that is just a 7-minute question time. Even if we get a chance to discuss it, we will not, it seems, have a genuine opportunity to amend it.
Regardless of the substance of the Charter, which may well be beneficial, we seem to have the worst of both worlds from a legislative point of view. There is no statute relating to regulation, so none of the usual democratic input. It is a process contained in a Royal Charter, theoretically emanating from the Queen and the Privy Council, but in reality put together by Ministers (the same is true of the BBC Charter). But there is also some statutory “underpinning”, in the form of an amendment to the Enterprise and Regulatory Reform Bill, passed by the Lords on 18 March this year. That amendment is now s.96 of the Act, and it says that where a body is set up by a Royal Charter with functions relating to industry, it may not be changed unless the conditions set out in the Charter for recommending a change are met. In the case of press regulation, today’s Charter says it may not be changed without a two-thirds majority of each House approving the change, this approval preceding a request to the Privy Council to change it. This a constitutional dog’s dinner.
No Parliament can bind its successor. It is not possible, under our unwritten constitution, to tie a future Parliament to the requirement of a two-thirds majority. So if in a few years’ time the government decides to change the Press Charter, but cannot obtain, or does not want to obtain a two thirds majority, it can repeal s.96 by a simple majority in primary legislation and make a recommendation to the Privy Council to change the Charter. The Privy Council might refuse to do this, either on the ground that the terms of the original Charter are not being adhered to, or on the ground that it is for the Privy Council to make up its own mind about altering its Charters. I am no expert and I expect there are others who know the answer to this, but I believe the Royal Prerogative is an independent power and not to be constrained by Parliament. And it is the Royal Prerogative being used in the case of press regulation.
I asked the Minister a few days ago whether he had taken legal advice on this, but got no reply.
There is, oddly, a link with the Syria intervention question here. Although in August the Prime Minister put the question to Parliament of whether or not thre should be armed intervention, in theory he, representing the Crown, can take the decision to go to war as a matter of Royal Prerogative, without needing a Parliamentary majority. But he preferred to take Parliament’s advice in this instance. I wonder if the ancient Royal Prerogative power is now on its way out, or is in the process of change?