Liberty: Royal Charter inappropriate mechanism to implement press regulation

21 May 2013

Today Liberty responded to both the press and politicians’ proposals for press regulation, criticising the Royal Charter mechanism chosen by both for implementation - a vehicle more closely tied to Government than any Act of Parliament. A Royal Charter is constitutionally inappropriate, undemocratic, opaque and in no way fit for this purpose.

The Leveson Report contained a welcome blueprint of the properties and functions of an effective self-regulator and there is apparent agreement between the press, politicians and the report about the basic structure of such a scheme.  However in almost six months since it was published there has been no headway in the establishment of new press self-regulation bodies.  It should be noted that there is no need for the press to wait in setting-up a self-regulator.

Shami Chakrabarti, director of Liberty, said:
“Six months on and still no sign of any real progress – and current squabbling over bizarre Royal Charters has achieved nothing but confusion and resentment. The Leveson Report contained an effective blueprint for a decent self-regulator so why hasn’t it been set up?

Victims and ethical journalists need protection and the public needs confidence restored – every day politicians and press barons prevaricate is another letting everyone down"

A recognition body has an important role in judging whether a self-regulator is providing fair, effective and credible regulation so it must have irreproachable independence and transparency.  However the limitations inherent to a Royal Charter make it difficult to achieve a truly independent recognition body.  As is obvious from both Charters, it creates an overly complex and bureaucratic system – which reflects the interests of the creator. For example, the press model would have the body funded by the press, whereas the politicians’ version would be funded from the Exchequer.

The approach taken in both Royal Charters is both overly prescriptive and inflexible.

 

Liberty’s concerns with the Royal Charters

  • A Royal Charter is a constitutionally inappropriate mechanism for setting up a recognition body.
  • Royal Charters, granted by the Privy Council (which is formally an arm of Government) are granted by a non-transparent and undemocratic process and therefore conventionally not used to create new bodies.
  • Indeed, the Privy Council’s own advice to those applying for a Royal Charter is rightly that where there is opposition to an application for a Charter, it is unlikely that one will be granted: “The fact of a formal Charter application will be published by the PC Office, to allow other interested individuals or organisations to comment or to lodge counter-petitions. Any proposal which is rendered controversial by a counter-petition is unlikely to succeed.”
  • Each of the Royal Charters proposed reveal the interests of their respective authors. Neither is able to ensure the independence necessary for the future regulation of the press.
  • It is not necessary for a new recognition body to be established in order to recognise a self-regulator, this function can be ably performed by the courts. This would remove the need for a Royal Charter and bureaucratic contortions contained therein.

 

Liberty’s preferred approach

  • The role of recognition is best suited to the judiciary – this would ensure independence from press and politicians, transparency, application of due process and expertise to adjudicate whether an organisation meets criteria.
  • Allowing the Courts to assess whether a regulator meets prescribed criteria would eliminate the need for bureaucratic appointments panels and recognition bodies.
  • This model requires just two core element to be formally prescribed; the basic criteria which a recognisable self-regulator must meet and; provisions as to the effect of membership on costs and damages. This could be done simply, through legislation.
  • We support the availability of exemplary damages for breach of confidence however there is a need for flexibility and judicial discretion when it comes to assessing damages or costs in any particular case. There is no reason why good faith – which could be demonstrated by membership of an effective regulatory body – should not be recognised when damages are being considered. However, failure to join an effective regulatory body should not lead automatically to an award of exemplary damages.

Liberty believes this is what effective self-regulation looks like - it is effective regulation imposed by industry on industry.  Never compulsory but with sufficient incentives to make voluntary take-up likely and, ultimately, accountable to the rule of law rather than politicians.

 

Contact: Liberty press office on 020 7378 3656 or 07973 831128

NOTES TO EDITORS:

  1. Liberty’s full briefing can be found here
  2. The two competing Royal Charter proposals appear to breach the Privy Council’s own criteria for assessing whether a Royal Charter should be granted. These are:

(a) the institution concerned should comprise members of a unique profession, and should have as members most of the eligible field for membership, without significant overlap with other bodies;                                                             

(b) corporate members of the institution should be qualified to at least first degree level in a relevant discipline;                                                                         

(c) the institution should be financially sound and able to demonstrate a track record of achievement over a number of years;                                                 

(d) incorporation by Charter is a form of Government regulation as future amendments to the Charter and by-laws of the body require Privy Council (ie Government) approval. There therefore needs to be a convincing case that it would be in the public interest to regulate the body in this way; and                                                

(e) the institution is normally expected to be of substantial size (5,000 members or more).