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 Lawyers normally speak of entrenchment in relation to statutory provisions that cannot be repealed or amended in the normal way: i.e. by a simple majority of both Houses of Parliament plus royal assent.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.
Public Law for Everyone 
Thank you very much for this cogent analysis. Following a series of press remarks making erroneous assertions, I wrote the following last night, and you have sated my curiosity completely. Much appreciated 🙂
“Sunday, 17 Mar 13.
I’m confused. According to various news sources, Labour and the Lib Dems accept the principle of the Royal Charter – but say it should be subject in law to an “enshrinement clause”, meaning it could not be changed without the backing of two thirds of both MPs and peers. On what constitutional basis would this work? It is a long-standing principle in English constitutional law that no parliament can bind its successor, i.e. this parliament can not prevent future parliaments repealing, in this case, the proposed Royal Charter, with a simple majority in both houses and royal assent. Previous Hansard discussions (below) have suggested that a bill passed with a 2/3 majority might seek to require another 2/3 majority to override/revoke it, but there is no prospect of that tomorrow, as the Lib/Lab coalition lacks the votes to get much more than a simply majority. Ideas, anyone?
“…The issue of entrenchment is more challenging and intractable. Our constitution says that Parliament is supreme–except that it cannot bind its successors. Therefore, however one seeks to entrench an Act–for instance, by special majority provisions–a subsequent Act, even passed by a simple majority, would repeal it. That applies even to the European Human Rights Act which was passed by the Parliament two years ago. The passage of a future Act of Parliament by a simple majority would remove its effect entirely from the United Kingdom law.
One way of achieving that end might be to devise an Act which dealt with an important constitutional issue; entrench that Act by, say, a two-thirds majority in both Houses; and then stipulate that if, despite the requirement of a two-thirds majority, a subsequent Act of Parliament sought to repeal that Act by a simple majority, then before the Monarch gave assent an individual could seek an injunction in the courts in order to prevent the Bill receiving Royal Assent. That course raises questions about another part of our constitution–the separation of powers. However, such a way forward might be a way of providing real entrenchment…”
Lord Kingsland, Hansard, 19 Jan 2001 : Column 1328, http://www.publications.parliament.uk/pa/ld200001/ldhansrd/vo010119/text/10119-04.htm
(I’m aware of Laws LJ’s dicta in Thoburn about constitutional statues, and Steyn et al’s parliamentary sovereignty dicta in Jackson, but neither seem to apply here; the former focussing on implied/explicit repeal, the latter on fundamental rights, particularly JR.)”
So, would it have been possible to pass a single distinct statute containing the “2/3 majority votes for post 1 March Royal Charters” clause, and including a provision in that single distinct statute that the statute could not itself be amended without a 2/3 majority vote in each house?
A good question – to which a definitive answer cannot be given. It depends on whether Parliament is able to entrench legislation to any extent. The traditional view is that it cannot: parliamentary sovereignty means that Parliament is continuously sovereign and can do nothing that would detract from its own authority. But there is a competing view which holds that Parliament can make it more difficult – but not impossible – to repeal legislation, e.g. by requiring a super-majority. That approach received some support from the comments of certain Law Lords in Jackson v Attorney-General.
Does not Article 9(1) of the draft Charter itself limit the power (of the Queen in Council i.e. the Government) to amend the Charter only if the requirements of Article 9(2) are met? If that is right what does clause 92 add? Or does the Queen in Council have some sort of inherent, prerogative power to amend/dissolve Royal Charters notwithstanding the terms/requirements of the Charters themselves?