Legal experts question Privy Council tactics on press regulation

The Government’s use of the Privy Council to create a new Royal Charter-backed system of press regulation is “back door” legislation, a constitutional expert has warned.

Professor Robert Hazell, founder of the Constitution Unit at University College London, said that the Privy Council, which is due to consider two alternative Royal Charters on press regulation, “has no autonomy separate from Government”.

He told Press Gazette: “The Privy Council is not a deliberative body; it signs off on things that are pre-cooked by Government. Everything is done on advice from Government.”

Commenting on the decision to use the Privy Council instead of going through Parliament, Hazell said: “It’s just another kind of legislation.

“This was devised as a way to enable the Government to say this isn’t statutory legislation’.”

He added that statutory legislation is “more independent of the Government” than laws passed through the Privy Council “as it has to go through both houses of Parliament” before it is agreed.

“Privy Council is a back door means of legislation and is wholly under the control of the executive.”

The warning comes as confusion continues to shroud the creation of a new regulatory regime for the newspaper and magazine industry.

The Privy Council met last Wednesday to consider the Royal Charter proposed by publishers’ body Pressbof and supported by the majority of the newspaper industry.

It passed the Royal Charter on to a sub-committee to make a recommendation in time for its next meeting after Parliament’s summer recess.

That means that the rival Royal Charter proposed by the three main political parties in Westminster may not come before the council until November, angering campaigners for tighter regulation.

Hacked Off last week called on Culture Secretary Maria Miller to dismiss the Pressbof Royal Charter and assess the three-party proposal instead.

The group backed an open letter to Miller from several high-profile victims of press intrusion, calling on her to “stand up to” the newspaper owners and publishers which they said were “challenging the democratic will of Parliament”.

But it is understood that ministers agreed to consider the newspaper industry charter first amid fears of legal reprisals if they did not do so. The industry charter published in May was the first to be submitted to the Privy Council, despite the three-party plan being agreed in March.

Hazell said he was not aware of any reason why the two plans could not both come before the council.

“I don’t understand why they cannot be considered at the same time,” he told Press Gazette.

Mark Stephens, a media lawyer who specialises in constitutional law, believes the Privy Council should approve the publisher-backed Royal Charter.

He said: “It seems to me that it would be perverse not to approve this [the Pressbof Royal Charter].

“I don’t think they can reject it because they think a better Royal Charter is coming along later.

“The press Royal Charter outlines a system of self-regulation which the industry consents to; the Government Charter doesn’t have that same consensus and support.”

Despite this, Miller has already expressed support for the Parliamentary charter, while Prime Minister David Cameron has said the Pressbof charter has “serious shortcomings”.

If the three-party charter is rubber-stamped by the Privy Council later this year there seems little prospect that many newspapers would sign up to it.

Regional newspapers in particular have expressed alarm that a mandatory free libel arbitration service for settling disputes will be included in a new Parliament-backed regulator.

They fear this would leave them open to “crippling costs” and could force a number of titles out of business.

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