The BBC is reporting that the three main UK political parties have struck a deal on press regulation. What is now clear is that the body responsible for recognising the new regulator will be established by royal charter and will not be underpinned by statute law in the way that Lord Justice Leveson advocated in his report. What is less clear is whether the proposal can nevertheless be said to amount in some other sense to “statutory underpinning”. David Cameron says that there is to be no statutory underpinning; Ed Milliband says there is.
These flatly contradictory statements are explicable by reference to the compromise—or fudge—upon which the politicians are relying. The essence of that compromise lies in an amendment tabled by Lord Stevenson to the Enterprise and Regulatory Reform Bill that is presently making its way through Parliament. It is proposed that the following clause be inserted into the Bill:
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 requirements included in the Charter on the date it is granted for Parliament to approve the amendment or dissolution have been met.
It is further proposed that the terms of the recognition body’s royal charter should trigger this clause by stipulating relevant requirements—namely, that there would have to be a two-thirds majority in Parliament before a recommendation could be made concerning the amendment of the regulator’s charter or its dissolution. Paragraph 10.1 of the draft royal charter says:
This Charter, and the Recognition Panel created by it, shall not be dissolved unless information about the proposed dissolution has been presented to Parliament, and that proposal has been approved by a resolution of each House. For this purpose “approved” means that at least two-thirds of the members of the House in question who vote on the motion do so in support of it.
So: what does this—and what does it not—mean?
What it does mean
The clause has been described in some quarters as “entrenching” the new regulatory arrangements. However, the language of entrenchment is rather misleading. Lawyers normally speak of entrenchment in relation to statutory provisions that cannot be repealed or amended in the normal way: i.e. by a simple majority of both Houses of Parliament plus royal assent. That is not what is envisaged here.
The proposed clause in the Enterprise and Regulatory Reform Bill would not be entrenched. Indeed, it is not addressed to Parliament. Rather, it is addressed to the Executive. It is, in effect, the Executive that makes recommendations to “Her Majesty in Council” as to the terms of royal charters or the dissolution of bodies established thereunder. And the effect of the proposals is that the Executive would be disabled from unilaterally procuring the dissolution of the new recognition body or amending the terms of the royal charter under which it is envisaged it would operate. The Executive would only lawfully be able to procure such amendment or dissolution if it first secured the requisite two-thirds majority.
Does this amount to statutory underpinning? Leveson proposed that legislation should prescribe the requirements that a self-regulatory body should meet and create a statutory mechanism for certifying whether those requirements were met. Leveson was very careful to emphasise that this would not reduce to statutory regulation. Rather, it would amount to self-regulation by an independent body certified as a recognised regulator via a statutory process. It is clear, therefore, that the sort of statutory underpinning that Leveson had in mind was of a different form from that which the current proposals envisage. The clause in the Enterprise Bill would not underpin the recognition body: it would simply limit the Executive’s capacity to interfere in relation to that body.
What it does not mean
The proposals may prevent the Executive from readily and unilaterally interfering with the new regulatory arrangements, but the degree of protection that they would confer should not be overestimated. This relates back to the point, made above, that the relevant clause in the Enterprise and Regulatory Reform Bill would not itself be entrenched. So while the effect of the clause, combined with a suitably-worded royal charter, may be to preclude Executive interference absent a two-thirds majority, the clause is not itself protected against amendment or repeal effected in the normal way. (Whether the clause—or any clause in any Bill—could be protected against repeal except by a super-majority is an interesting question, but one that the proposal does not raise.)
It would, therefore, be open to a future Government to amend or repeal that clause by means of a simple majority. And the effect of that would be to remove the need for a two-thirds majority before the Government could intervene in relation to press regulation by means securing the amendment of the recognition body’s royal charter or its dissolution. In other words, the two-thirds majority requirement could be removed by legislation enacted with a simple majority. It could even be removed by legislation enacted without the consent of the House of Lords, if a future Government were willing to push such legislation through under the Parliament Acts 1911-49.
Of course, doing such things would be politically difficult. But none of them would be legally impossible. It follows, then, that the extent to which the new press body would be a secure feature of the regulatory landscape would turn first and foremost upon political considerations. The proposals do not constitute statutory underpinning in the sense envisaged by Leveson, and nor would they remove the legal capacity of a determined Government relying upon a simple majority to enact legislation so as to facilitate intervention in relation to the proposed press regulator. Whether these are positive or negative features of the proposals is a matter of opinion and beyond the scope of this post. It is, however, important that the legal significance of the proposals – and the limits of their legal significance – be accurately understood.