Privy Council and Royal Charters: Constitutional Obfuscation

The Privy Council is in the news following the unfortunate decision of the Prime Minister to ignore a key Leveson recommendation and to constitute a “recognition body” by Royal Charter, rather than by statute.

Neither the press nor Lord Justice Leveson’s supporters were enthusiastic about this recourse to Royal Charter.  This inevitably involved the Privy Council, an important but obscure feature of the British Constitution, which appears to be an independent body but is, in practice, a committee of the Cabinet. As the authoritative legal textbook, Halsbury’s Laws of England, puts it:

“the Privy Council itself has ceased to exercise its former deliberative and consultative functions, except through the medium of its committees and meets principally to confer formal approval upon documents, the purport and tenor of which has been previously considered and decided upon by the Cabinet, committees of the Privy Council, or the various ministers and government departments.”

In short, the Privy Council rubber stamps government decisions.  Privy Council meetings are usually attended by four government ministers – although there is no rule specifying the number (See P O’Connor, The Constitutional Role of the Privy Council and the Prerogative, JUSTICE, 2009. p.8).  The Queen usually presides but any two “Counsellors of State” (that is, one of five senior members of the Royal Family) could take her place.

There has been much discussion of the proper procedures for the consideration of the Cross-Party and PressBoF Royal Charters.  Like everything else about the Privy Council there are no actual written rules as to how this should be done.

The Privy Council has a procedure under which anyone may petition for the grant of a Royal Charter.  This is set out on its website (it is not clear whether there is a formal document embodying the procedure, but this seems highly unlikely).

This procedure suggests that where a body applies for a Charter the Privy Council will publish the application to allow for comments or “counter-petitions”.  It is said that “any proposal which is rendered controversial by a counter-petition” is unlikely to succeed.

The Petition for the PressBoF charter was lodged on 1 May 2013 and the DCMS decided to have a “period of openness” – that is a “publication” in accordance with the usual procedure.  “Comments” were invited and were lodged.   But this procedure concerns applications for “private” charters by bodies of people wishing to be incorporated, it does not deal with Government Charters.

It has now been announced that on 10 July 2013 the PressBoF charter was referred to an eight member Committee of the Privy Council.  Once again, the language should not obscure the true position.  The PressBoF charter is being considered by a Committee of Government Ministers.  The decision as to what to do about this charter is a government decision.  The role of the Privy Council is purely formal – and not subject to any written rules.

The PressBoF charter is inconsistent with settled Government policy – approved by Parliament – namely the Cross Party charter.  The Committee should quickly and efficiently dispose of the PressBoF document and the Cross Party Charter presented for sealing at a Privy Council meeting in late July or August.  Such a meeting can be called whenever the Government decides to do so.

This constitutional farce has dragged on too long. The Press BoF charter should have been ignored at the outset.  It should be rejected now and the Cross Party charter sealed as soon as possible.  The next phase of the implementation of the Leveson report can then, at last, begin.



1 Comment

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Robert Reynoldsreply
July 17, 2013 at 12:23 pm

Thanks for news of Her Majesty’s referral of PressBoF’s counter-Charter to a strong Privy Council committee, clearly intended to be seen as authoritative, presumably expected to clear the table for her Majesty then to refer or seal the All-Party Charter, whatever might be the further way-laying – legalistic and out-of-context – by arguments pretending both proposals ‘too controversial’.

Dismissal of the PressBoF proposal should be detailed and with summative comment on the spirit pervading, not simply of caution with respect to freedom and finance and workability, but of frank highly-sectional determination to resist Leveson-compliance and the will of people and Parliament. There should be no way back into ‘negotiation’ of small-print with an industry yet to be freed to speak for itself.

With the resources of government and of party and public to support them, with consultation long completed, and with time now available in parliamentary recess, the committee’s address should not wait but might reasonably allow itself some ‘over-kill’, perhaps reporting back in early August rather than late July.

Though many of us might feel we have ‘seem everything’, it is surely unimaginable that this committee of eight, combining such power of youth and experience, will fail to uphold the considered will of Parliament. Whatever the on-going threats of non-cooperation and of legal harrying, people and press deserve the chance to try the All-Party Charter route to Leveson-compliant regulation, the trial to begin as soon as possible.

To that end I share the hope that with the perspective afforded by the committee’s study, the sealing of the All-Party Charter might be on the same day as the report-back.

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