On 1 May 2014, Lord Justice Maurice Kay in the Court of Appeal entirely rejected a final appeal by PressBoF. They claimed their Royal Charter application had not been fairly treated when it was considered by the DCMS and the Privy Council in two separate stages with a public consultation and three-month deliberation.
During the oral hearing on 30 April, PressBoF’s QC claimed there had been an unfair process. PressBoF argued that they had not been given sufficient evidence of the criteria used by both the DCMS and the Privy Council. It was suggested by their lawyer that, had they known the specific criteria, they would have negotiated more closely to a Royal Charter that Leveson would have approved of.
We know that this is fanciful. The story of the industry’s Leveson engagement has been to dilute and refuse to compromise.
Among their arguments was this: how could they know which Government Charter they were supposed to emulate, since as well as the one published on 18 March, a Government draft charter was published on 12 February 2013?
Obviously we know this is a “misleading” (to be polite) argument because the one published on 12 February was clearly labelled as “not the Government’s Charter draft but that of Conservative ministers“. It was, of course, concocted in negotiations with the press with the public and victims excluded. PressBoF might also have recognised that the Charter to seek to emulate was the one passed “nem con” by Parliament on 18 March, not the one rejected by everyone on 12 February.
However, while he was – he said – “deeply mindful of their grievances“, Lord Justice Maurice Kay rejected their appeal in its entirely.
In his judgment, he said he believed that PressBoF had been given every opportunity to check what the criteria would have been, especially through the several drafts that were made of the proposed Charter.
Not only this, but due to the nature of the Royal Charter and public debate around press regulation, the criteria of a Royal Charter would have been obvious to every member of the press industry – principally surrounding Lord Justice Leveson’s recommendations.
The judge went on to say that he was not making judgement on the different varying qualities of the rival Royal Charter, but rather on the contested process.
His conclusion was that the process was “not unfair or even arguably unfair” and that the PressBoF argument was a “fanciful” one.
Whilst PressBoF has lost this appeal, they were also seeking in another case to challenge the Privy Council’s granting of the cross-party Leveson Royal Charter. But that case was “parasitic” on the outcome of today, and we will have to wait a week to see whether PressBoF decide to pursue it.
Considering they publicly heckle the idea of Royal Charters, it seems interesting that they are so determined to have their very own version recognised.
According to those present on both occasions, Lord Black (of PressBoF, the Telegraph and the Conservative Party), Peter Wright (from the Daily Mail Group) and a phalanx of well-paid lawyers had been rather chipper yesterday after their case had been put, with pats on the back all round.
But apparently they were much quieter today. After they lost the case in the first instance court, articles appeared attacking the judge for having made up his mind after only reading the case papers. This time, the judge waited until the next day to give his judgment. He will no doubt get a pasting in the papers anyway. Or the press will hush up their defeat.